Govindbhai Rambhai Bharvad, Ahmedabad V. ITO, Ward-6(1)(1), Ahmedabad

ITA 677/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1038 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-12-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PARIN SHAH ARS
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, SMC- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER . ITA NO. 676/AHD/2018 / ASSTT. YEAR: 2012-13 MANUBHAI RAJABHAI BHARVAD 43, BHARVAD VAS, NR. KHODIYAR, MATA TEMPLE, ODHAV, AHMEDABAD- 382415 PAN NO. AYZ PB1 456 C VS. ITO WARD-6(1)(1), AHMEDABAD / (APPELLANT) / (RESPONDENT) . ITA NO. 677/AHD/2018 / ASSTT. YEARS: 2012-13 GOVINDBHAI RAMBHAI BHARVAD 75, BHARVAD VAS, SCHOOL NO. 2, ODHAV, AHMEDABAD- 382415 PAN NO. AZD PB9 098 B VS. ITO WARD-6(1)(1), AHMEDABAD / (APPELLANT) / (RESPONDENT) . ITA NO. 678/AHD/2018 / ASSTT. YEARS: 2012-13 SAVJIBHAI POPATBHAI BHARVAD 67, BHARVAD VAS, NR. KHODIYAR, MATA TEMPLE, ODHAV, AHMEDABAD-382415 PAN NO. BCP PB3 519 R VS. ITO WARD-6(1)(1), AHMEDABAD / (APPELLANT) / (RESPONDENT) ITA NOS. 676/AHD/2018, 677/AHD/2018 & 678/AHD/2018 A.Y. 2012-13 2 ASSESSEE BY : SHRI BANDISH SOPARKAR & PARIN SHAH, ARS REVENUE BY : SHRI DILEEP KUMAR, SR DR ' #$% /DATE OF HEARING : 05/12/2019 &' $% /DATE OF PRONOUNCEMENT: 18/12/2019 () / O R D E R PER MS. MADHUMITA ROY- JM : THE BUNCH OF APPEALS RELATE TO THE ORDER PASSED BY THE CIT(A)-6, AHMEDABAD ALL DATED 22.09.2016 UNDER SECTION 143(3) OF THE ACT, 1961 ARISING OUT OF THE ORDER PASSED BY THE LD. ITO, WARD-6(1)(1), AH MEDABAD FOR A.Y. 2012-13. SINCE ALL THE APPEALS RELATE TO IDENTICAL GROUNDS, THESE ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON ORDER. 2. ITA NO. 677/AHD/2018 IS TAKEN AS THE LEAD CASE. THE CONFIRMATION OF ADDITION OF RS. 62,60,720/- TREATING THE SAME AS I NCOME FROM UNDISCLOSED SOURCE HAS BEEN CHALLENGED BEFORE US. THE APPELLANT IS AN AGRICULTURIST AND ALSO PERFORMI NG AGRICULTURAL ACTIVITY AND EARNS AGRICULTURAL INCOME. DUE TO LACK OF PROF ESSIONAL ASSISTANCE IN FILING THE RETURN OF INCOME, THE ADVANCE RECEIVED AGAINST THE SALE OF LAND AND THE AGRICULTURAL INCOME HAS BEEN ERRONEOUSLY SHOWN IN THE RETURN OF INCOME. ACCORDING TO THE APPLICANT, THE SAME IS A BONA FIDE ERROR ON THE PAR T OF THE ASSESSEE. IT IS THE FURTHER CASE OF THE ASSESSEE THAT THE ADVANCE RECEIVED AGAI NST THE SALE OF LAND IS TAXABLE IN THE YEAR IN WHICH FULL RISK AND REWARD ALONG WITH P OSSESSION HAS BEEN TRANSFERRED TO THE BUYER IN TERMS OF THE PROVISION OF SEC. 2(47) O F THE ACT AND, THEREFORE, ADVANCE RECEIVED IS ALSO NOT TAXABLE AS RISK AND REWARD AND POSSESSION HAS NOT BEEN TRANSFERRED TO THE BUYER IN THE YEAR UNDER CONSIDER ATION. THE PLEA MADE BY THE ASSESSEE AS ABOVE WERE DULY SUBMITTED BEFORE THE LD . CIT(A) BY AND UNDER A LETTER DATED 24.03.2015 ALONG WITH THE COPY OF THE DEED OF SALE FOLLOWED BY A FURTHER SUBMISSION DATED 27.03.2015 AS APPEARING AT PAGE NO . 19 TO 20 OF PAPER BOOK ITA NOS. 676/AHD/2018, 677/AHD/2018 & 678/AHD/2018 A.Y. 2012-13 3 FILED BEFORE US HAS BEEN BROUGHT TO OUR NOTICE BY T HE LD. AR AT THE TIME OF HEARING OF THE INSTANT APPEAL. FURTHER THAT SINCE NONE COULD APPEAR ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING OF THE MATTER, THE MATTER WAS DECIDED EX-PA RTE. THE LD. ADVOCATE APPEARING FOR THE ASSESSEE, THEREFORE, PRAYS FOR AN OTHER OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A). ON THE CONTRARY, THE LD. DR RELIE D UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. 3. HEARD THE PARTIES, PERUSED THE RELEVANT MATERIAL S AVAILABLE ON RECORD. IT APPEARS THAT THE LD. CIT(A) IN THE ORDER IMPUGNED MEN TIONED AT PAGE 2 OF PARAGRAPH 5 THEREIN THAT NONE ATTENDED ON BEHALF OF THE ASSESSEE, NEITHER ANY WRITTEN SUBMISSION HAS BEEN FILED BUT THE FACT REMA INS THAT THE ASSESSEE DULY FILED THE WRITTEN SUBMISSIONS MENTIONED HEREINABOVE WHICH IS REFLECTING FROM THE ORDER PASSED BY THE LD. AO. THE REPRESENTATIONS DATED 24. 03.2015 AND DATED 27.03.2015 BEING PART OF THE DOCUMENTS OF THE PAPER BOOK WERE SUBMITTED AND/OR MADE AVAILABLE TO THE AO AND THE CIT(A) AS WELL AS IT IS CERTIFIED BY THE LD. AR. HOWEVER, WHEN THE SAME HAS BEEN CONFRONTED TO THE LD . DR NO FRUITFUL ANSWER WAS GIVEN FROM THAT END. IT IS EXPECTED THAT WHEN A WRITTEN NOTES OF SUBMIS SION HAS BEEN DULY GIVEN BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW, WHILE DEALING WITH THE MATTER IN THE ABSENCE OF ASSESSEE, THE SAID WRITTEN SUBMISSION SH OULD HAVE BEEN CONSIDERED IN ITS PROPER PERSPECTIVE BY THE LD. CIT(A). SINCE THE SAI D DUTY HAS NOT BEEN PERFORMED BY THE LD. CIT(A) WE FIND FIT AND PROPER, IN ORDER TO PREVENT THE MISCARRIAGE OF JUSTICE, TO GRANT ANOTHER OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. WE, THUS, RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) TO DE CIDE SAME AFRESH UPON GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AND UPON CONSIDERING THE EVIDENCE ON RECORD AND ALSO ANY ANOTHER EVIDENCE WH ICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE APPEAL. ITA NOS. 676/AHD/2018, 677/AHD/2018 & 678/AHD/2018 A.Y. 2012-13 4 HOWEVER, WE MAKE IT CLEAR THAT THE ASSESSEE WILL A LSO CO-OPERATE WITH THE FIRST APPELLATE AUTHORITY WITHOUT ASKING FOR UNNECE SSARY ADJOURNMENT. THE MATTER IS THUS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 676/AHD/2018 & 678/AHD/2018 (A.Y. 2012-13) :- 4. THE GROUNDS OF APPEAL AS ARGUED BY THE LD. AR ARE IDENTICAL TO THAT OF THE ISSUES ALREADY BEEN DEALT WITH BY US IN ITA NO. 677 /AHD/2018 FOR A.Y. 2012-13 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTATIS MUTANDIS . HENCE, THESE GROUNDS OF APPEAL PREFERRED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. [ORDER PRONOUNCED IN THE COURT ON 18.12.20 19.] SD/- SD/- ( PRADIP KUMAR KEDIA ) ( MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/12/2019 TANMAY, SR. PS TRUE COPY ()$*+,(+ /COPY OF THE ORDER FORWARDED TO : () ' / BY ORDER - / . (DY./ASSTT. REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION : 06.12.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 11-12-2019 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S : 16 -12-2019 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT. : -12-2019 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : -12-2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 18-12-2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER : 1. / THE APPELLANT 2. / / THE RESPONDENT. 3. ' 0 / CONCERNED CIT 4. ' 0 ( ) / THE CIT(A) 5. +12 , / DR, ITAT, 6. 234# / GUARD FILE.