Nilaben A. Mohile, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-1, RAJKOT-GUJARAT

ITA 649/RJT/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76381 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-01-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 21-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI DR
• Assessee Lawyers: CHETAN AGARWAL
• Keywords: Unexplained expenditure; Opportunity of being heard; Bonafide belief

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM AND SHRI B. R. JAIN, A M ITA NO. 649/RJT/2012 / ASSESSMENT YEAR : 2003-04 NILABEN A. MOHILE NINAD, 17, PANCHNATH PLOT, RAJKOT PAN : ACJPM 7133 K ( / APPELLANT) ACIT, CIRCLE-1, RAJKOT / RESPONDENT ! ' #$ / ASSESSEE BY SHRI CHETAN AGARWAL, CA % ! ' #$ / REVENUE BY DR. JAYANT B. JHAVERI, DR # & ' ! ( / DATE OF HEARING 09.01.2014 ) ! ( / DATE OF PRONOUNCEMENT 10.01.2014 / ORDER .. , / T. K. SHARMA, J. M.: THIS APPEAL BY THE ASSESSEE IS AGAINST THE EX-PARTE QUA ASSESSEE ORDER DATED 04 .10.2012 OF LD. CIT(A)-II, RAJKOT DISMISSING THE APPEAL OF THE ASSESSEE FOLLOWING THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF MOTOR GENERAL FINANCE V. CIT (254 ITR 4 49) FOR THE ASSESSMENT YEAR 2003- 04. 2. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF T HE ASSESSEE, SHRI CHETAN AGARWAL, CA, APPEARED AND POINTED OUT THAT BEFORE THE LD. CI T(A) THE ASSESSEE FILED THE APPEAL CHALLENGING THE ADDITION OF RS.7,07,225/- ON ACCOUN T OF ALLEGED SUPPRESSED RECEIPT FROM PROFESSION AND ADDITION OF RS.2,45,296/- ON THE ALL EGED UNEXPLAINED EXPENDITURE/EXPENSES ON TRAVELING. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A GYNECOLOGIST. IN THE ASSESSMENT YEAR UNDER APPEAL, AN ADDITION OF RS.7,07,225/- WAS MADE ON THE BASIS OF REPORT OF IN SPECTOR WHICH WAS NEVER MADE AVAILABLE TO THE ASSESSEE AND FOR THIS REASON THE A SSESSEE WAS SEEKING THE ADJOURNMENTS BEFORE THE LD. CIT(A)-II, RAJKOT AND A SKING HIM TO SUPPLY THE COPY OF INSPECTORS REPORT WHICH IS RELIED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. HE SUBMITTED THAT THE COUNSEL OF THE ASSESSEE SHRI DIV YANG D. SHAH, ADVOCATE WAS OF THE BONAFIDE BELIEF THAT UNLESS THE COPY OF INSPECTORS REPORT WAS AVAILABLE, THE LD. CIT(A) 649-RJT-2012 - NILABEN A MOHILE 2 WILL NOT DECIDE THE APPEAL. THE LD. COUNSEL OF THE ASSESSEE PLEADED THAT THERE IS NO INTENTION TO REPRESENT THE CASE AND SINCE THE LD. C IT(A) DISMISSED THE APPEAL WHICH IS CONTRARY TO THE PROVISIONS CONTAINED IN SUB-SECTION (6) TO SECTION 250 OF THE INCOME-TAX ACT, 1961 WHICH PROVIDE THAT DISPOSING OF THE APPEA L SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. IN THIS CASE, THE LD. CIT(A) DISMISSED THE APPEAL WITH OUT CONSIDERING THE PROVISIONS OF SECTION 250(6) OF THE INCOME-TAX ACT, 1961. ITAT A HMEDABAD BENCH C IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. V. JCIT, REPORTED IN [20 00] 74 ITD 339 (AHD.), HELD THAT PROVISIONS OF SECTION 250(6) ARE MANDATORY AND IT I S OBLIGATORY FOR COMMISSIONER (APPEALS) TO PASS A SPEAKING ORDER STATING POINTS R AISED IN APPEAL, HIS DECISION THEREON AND REASONS FOR SUCH DECISION. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT EVEN IN AN EX-PARTY ORDER, THE CIT(A) SHOULD PASS A SPEAKING ORDER AND SINCE THIS WAS NOT DONE IN THE PRESENT CASE, THE ORDER OF LD. CIT( A) BE SET ASIDE AND HE MAY BE DIRECTED TO PASS A FRESH ORDER KEEPING IN VIEW OF P ROVISIONS OF SECTION 250(6) AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 3. DR. JAYANT B. JHAVERI, DR, APPEARED FOR THE REVE NUE POINTED OUT THAT ENOUGH OPPORTUNITY WAS ALLOWED BY THE LD. CIT(A) AND SINCE THE ASSESSEE WAS SEEKING THE ADJOURNMENTS, THE ORDER OF LD. CIT(A) DISMISSING TH E APPEAL OF THE ASSESSEE BE UPHELD. 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT T HE ADDITION OF RS.7,07,225/- HAS BEEN MADE ON THE BASIS OF INSPECTORS REPORT. THE ADVOCA TE OF THE ASSESSEE WAS OF THE VIEW THAT THE APPEAL CANNOT BE EFFECTIVELY ARGUED WITHOU T OBTAINING THE INSPECTORS REPORT. HE ACCORDINGLY REQUESTED TO THE CIT(A) TO SUPPLY THE I NSPECTORS REPORT INSTEAD OF REQUESTING TO THE ASSESSING OFFICER TO SUPPLY THE I NSPECTORS REPORT IN ACCORDANCE WITH LAW. BE THAT IT MAY BE, LOOKING TO THE CONSPICUOUS FACTS OF THE CASE, IT WILL MEET THE ENDS OF JUSTICE IF THE EX-PARTE QUA ASSESSEE ORDER OF LD. CIT(A) IS SET ASIDE AND HE MAY BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AF RESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D ACCORDINGLY. 649-RJT-2012 - NILABEN A MOHILE 3 5. BEFORE PARTING WITH, WE MAY OBSERVE THAT THE ASS ESSEE SHALL APPROACH THE CONCERNED INCOME-TAX OFFICER AS PER THE PROCEDURE P ROVIDED AND OBTAIN THE INSPECTORS REPORT AFTER DEPOSITING NECESSARY COPYING CHARGES. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- SD/- (B. R. JAIN) (T. K. SHARM A) $( #*% / ACCOUNTANT MEMBER #*% /JUDICIAL MEMBER *$+ ,*-/ ORDER DATE 10.01.2014 /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- NILABEN A. MOHILE, NINAD, 17, PANCHN ATH PLOT, RAJKOT 2. /RESPONDENT- ACIT, CIRCLE-1,RAJKOT 3. #-2- & 3 / CIT-I, RAJKOT 4. & 3 - / CIT(A)-II, RAJKOT 5 . 678 , , / DR, ITAT, RAJKOT 6 . 89 :; / GUARD FILE. *$+ #$ / BY ORDER , TRUE COPY PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.