Shri Dinesh Narayanchandra Das, Surat V. The Income tax Officer,Ward-6(1), Surat

ITA 679/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89567 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 21-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIMESH YADAV SR DR
• Keywords: Opportunity of being heard
• Section: 142(1); 147; 69; 148; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NOS. 844, 679, 680, 681 & 845/AHD/2012 / ASSESSMENT YEAR: 2003-04, 2004-05, 2005-06, 2006-07 & 2007-08 RESPECTIVELY SHRI DINESH NARAYANCHANDRA DAS, G-201, PRAGATI NAGAR, BEHIND PIPLOD JAKAT NAKA, PIPLOD, SURAT PAN : AFCPD 9959 A VS ITO, WARD 6(1) SURAT / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI MEHUL SHAH, AR REVENUE BY : SHRI NIMESH YADAV, SR. DR. !' # $%&/ // / DATE OF HEARING : 29/05/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 05/06/2015 )* )* )* )*/ // / O R D E R PER BENCH : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- IV, SURAT FOR ASSESSMENT YEARS 2003-04, 2004-05, 2005-06, 2006-07 & 2007-08. SINCE COMMON GROUNDS ARE INVOLVED, ALL THESE FIVE APPEALS WERE TAKEN UP TOGETHER FOR HEARING AND ARE BEING DISPOSED OF BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS THE FACTS AND ISSUES INVOLVED IN ALL THE YEARS UNDER CO NSIDERATION ARE THE SAME EXCEPT DIFFERENCE IN FIGURES AND ASSESSMENT YEARS, HE IS ARGUING THE APPEAL FOR ASSESSMENT YEAR 2004-05 (ITA NO. 679/AHD/2012) AND THE ARGUMENTS MADE FOR THIS YEAR ARE ALSO BE TAKEN AS THE ARGUMEN TS FOR THE OTHER ASSESSMENT YEARS UNDER APPEAL. ITA NOS. 844, 679, 680, 681, & 845 AHD 2012 SHRI DINESH NARAYANCHANDRA DAS VS. ITO FOR AY 2003-04, 04-05, 05-06, 06-07 & 07-08 2 3. THE BRIEF FACTS OF THE CASE, AS CULLED OUT FROM THE RECORDS FOR ASSESSMENT YEAR 2004-05 I.E. ITA NO. 679/AHD/2012, ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 ON 01.12.2015, DECLARING TOTAL INCOME AT RS.53,753/-. THE CASE WAS RE-OPENE D U/S 147 OF THE INCOME- TAX ACT (HEREINAFTER REFERRED TO AS 'THE ACT') ON T HE GROUND THAT THE AMOUNT OF RS.3,77,235/- DEPOSITED IN THE BANK ACCOUNT NO.0 6671500013595 MAINTAINED WITH HDFC BANK, WHICH WAS NOT SHOWN IN T HE BOOKS OF ACCOUNTS, WAS ESCAPED FROM ASSESSMENT. THEREAFTER, ASSESSMENT U/S 144 R.W.S. 147 OF THE ACT WAS FRAMED VIDE ORDER DATED 0 8.12.2010, WHEREBY THE ASSESSING OFFICER MADE ADDITION OF RS.3,77,235/- ON ACCOUNT OF UNEXPLAINED BANK DEPOSITS. AGAINST THE AFORESAID ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DISMISSED THE APPEAL O F THE ASSESSEE VIDE ORDER DATED 30.11.2011. AGGRIEVED WITH THE AFORESAID ORD ER OF THE CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US, ON THE FOLLOWI NG GROUNDS:- AY 2004-05 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RE OPENING ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) ERRED IN PASSING EX-PARTY ORDER U/S 144 OF THE I.T. ACT. 3. ON THE FACTS AND IN CIRCUMSTANCE OF THE CASE AS WEL L AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKIN G ADDITION OF RS.3,77,235/- AS UNEXPLAINED BANK DEPOSITS U/S 69 O F THE ACT. ITA NOS. 844, 679, 680, 681, & 845 AHD 2012 SHRI DINESH NARAYANCHANDRA DAS VS. ITO FOR AY 2003-04, 04-05, 05-06, 06-07 & 07-08 3 4. IT IS THEREFORE PRAYED THAT ASSESSMENT FRAMED U/S 1 44 R.W.S. 147 OF THE ACT MAY KINDLY BE QUASHED OR ALTERNATIVELY THE ADDITION S MADE BY ASSESSING OFFICER AND CONFIRMED BY LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) MAY PLEASE BE DELETED. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY BY THE ASSESSING OFFIC ER AND HE OPPOSED THE ORDER U/S 144 R.W.S. 147 PASSED BY THE ASSESSING OF FICER. HE SUBMITTED THAT THERE IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTIC E AS THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE ASSESSING OFFICER. ON THE CONTRARY, LD. SR. DR. VEHEMENTLY O PPOSED THE SUBMISSION OF THE ASSESSEE AND SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THER E IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSMENT HAS BEEN FRA MED U/S 144 R.W.S. 147 OF THE ACT. WE FIND THAT THE ASSESSING OFFICER, IN HI S ORDER, HAS RECORDED THE FINDINGS AS UNDER:- 2. THE ASSESSEE WAS REQUIRED TO FILE HIS RETURN O F INCOME WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THE SAID NOTICE. HOWEV ER, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. THEREAFTER, A NOTICE U/S 142 (1) WAS ISSUED TO THE ASSESSEE ON 21.07.2010 WHEREIN THE ASSESSEE WAS REQUESTED TO FURNISH CERTAIN DETAILS AND EVIDENCES AND THE ASSESSEE WAS REQUIRED TO FURN ISH THE SAID DETAILS ON 28.07.2010 AT 3.30 P.M. BUT THE ASSESSEE NEITHER A TTENDED THE OFFICE NOR FILED THE DETAILS CALLED FOR. THEREFORE, A SHOW CAUSE NO TICE U/S 142(1) OF THE ACT WAS ISSUED ON 01.10.2010 AND THE ASSESSEE WAS REQUE STED TO SHOW CAUSE AS TO WHY THE ASSESSMENT SHOULD NOT BE PASSED U/S 144 OF THE ACT I.E. BEST JUDGMENT ASSESSMENT, IN VIEW OF THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE. THE ADDITION PROPOSED TO BE MADE WAS ALSO BROUGHT TO THE NOTICE OF THE ASSESSEE VIDE THE AFORESAID SHOW CAUSE NOTICE D ATED 01.10.2010. FOR THIS PURPOSE, THE CASE WAS FIXED FOR HEARING ON 11.10.20 10 AT 11.30 AM. AGAIN THERE WAS NO RESPONSE ON THE PART OF THE ASSESSEE. HENCE, A LAST AND FINAL ITA NOS. 844, 679, 680, 681, & 845 AHD 2012 SHRI DINESH NARAYANCHANDRA DAS VS. ITO FOR AY 2003-04, 04-05, 05-06, 06-07 & 07-08 4 OPPORTUNITY WAS AFFORDED TO THE ASSESSEE VIDE SHOW CAUSE NOTICE DATED 30.11.2010 AND THE ASSESSEE WAS REQUIRED TO ATTEND THE NOTICE ON 06.12.2010 AT 4.30 PM. HOWEVER, THE ASSESSEE NEITHER ATTENDED THE OFFICE NOR FURNISHED ANY OF THE DETAILS AS CALLED FOR. THEREFORE, THE UN DERSIGNED IS LEFT WITH NO OTHER OPTION BUT TO FINALES THE ASSESSMENT ON THE B ASIS OF MATERIALS AVAILABLE ON RECORD. THE ASSESSMENT IS FINALIZED SUBJECT TO F OLLOWING REMARKS. 6. FROM THE ABOVE OBSERVATION OF THE ASSESSING OFFI CER, IT IS EVIDENT THAT THE ASSESSING OFFICER DID NOT GIVE SUFFICIENT TIME TO THE ASSESSEE FOR REPRESENTING ITS CASE. VIDE SHOW-CAUSE NOTICE DATE D 01.10.2010, THE ASSESSEE WAS REQUIRED TO APPEAR ON 11.10.2010 AND VIDE ANOTH ER NOTICE DATED 30.11.2010, THE ASSESSEE WAS REQUIRED TO ATTEND ON 06.12.2010. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THE ASSESSEE OUGHT TO HAVE BEEN GIVEN SUFFICIENT TIME BY THE ASSESSING OFFICER TO REPRESE NT HIS CASE. THEREFORE, UNDER THE FACTS OF THE PRESENT CASE, WE DEEM IT PRO PER THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER BE SET ASIDE FOR TH E ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. WE ORDER ACCORDINGLY AND HERE BY DIRECT THE ASSESSING OFFICER TO FRAME THE DE NOVO ASSESSMENT FOR ALL THE YEARS UNDER CONSIDERATION AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED NOT TO SEEK UNNECESSARY A DJOURNMENT AND FURNISH THE REQUISITE DETAILS AS CALLED FOR BY THE ASSESSIN G OFFICER. 7. IN THE RESULT, THE ASSESSEES APPEALS FOR ALL TH E FIVE ASSESSMENT YEARS UNDER CONSIDERATION ARE DEEMED TO BE ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5 TH JUNE, 2015 AT AHMEDABAD. SD/- SD/- (G.D. AGRAWAL) VICE-PRESIDENT (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 05/06/2015 BIJU T., PS ITA NOS. 844, 679, 680, 681, & 845 AHD 2012 SHRI DINESH NARAYANCHANDRA DAS VS. ITO FOR AY 2003-04, 04-05, 05-06, 06-07 & 07-08 5 )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A ) 5. +01 $ , , / DR, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD