Shri Bhutada Rajaram Champalal, V. ITO, Wd-1, Ichalkaranji,

ITA 781/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3364 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 30-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SING HMRS MANJU AJWANI
• Keywords: Opportunity of being heard; Set aside
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO ITA NO. 781/PN/2009 A.Y. 2006- 07 SHRI BHUTADA RAJARAM CHAMPALAL RAM RAJYA, H. NO. 7898/A, PLOT NO. 14 AWADE NAGAR ICHALKARANJI PAN NO. ABAPB5013F . APPELLANT VS. INCOME TAX OFFICER, WARD -1 ICHALKARANJI . RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY: SHRI A.S. SING H/MRS. MANJU AJWANI ORDER PER I.C. SUDHIR: THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER M AINLY ON THE GROUND THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISPOSING OF TH E APPEAL EXPARTE WITHOUT CONSIDERING THE MERITS CANVASSED BEFORE HIM THROUG H GROUNDS OF APPEAL RAISED BEFORE HIM BACKED BY STATEMENT OF FACTS PARTICULARL Y KEEPING IN VIEW THE PROVISIONS OF SEC. 250(6) OF THE ACT. 2. WITHOUT PREJUDICE TO THE ABOVE GROUND THE ASSESS EE HAS FURTHER QUESTIONED FIRST APPELLATE ORDER ON THE GROUND THAT LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 9,00,018/- MADE BY THE A.O U/S 68 O F THE ACT. BEING REALIZATION OF CAPITAL ON ACCOUNT OF SALE OF JEWELLERY WHICH WAS DECLARED IN VDIS 97 SCHEME. 3. AT THE OUTSET OF HEARING THE LD. AR SUBMITTED TH AT THE ASSESSEE WAS ALWAYS EAGER TO PURSUE ITS APPEAL PROPERLY BEFORE THE LD. CIT(A) BUT DUE TO ONGOING PROBLEMS, INFORMATION AND DOCUMENTS NECESSARY TO BE PRODUCED IN SUPPORT OF THE ITA NO. 781/PN/2009 AY: 2006-07 PAGE 2 OF 3 CASE OF THE ASSESSEE WERE NOT RECEIVED AND ASSESSEE HAD REQUESTED FOR FURTHER TIME TO THE LD. CIT(A) FOR THE SAME BUT THE SAME WAS DEN IED. THE LD. CIT(A) PREFERRED DISMISSAL OF THE APPEAL MERELY UPHOLDING THE ADDITI ON MADE BY THE A.O U/S. 68 OF THE ACT AND BY APPLYING THE DECISION IN THE CASE OF MUL TIPLAN INDIA LTD. 38 ITD 320. THE LD. AR SUBMITTED THAT THERE WAS SUBSTANTIVE EVIDENC E WITH THE ASSESSEE TO ESTABLISH THAT THE ASSESSEE HAD BROUGHT AN AMOUNT OF RS. 9,00 ,018/- TO THE CAPITAL ACCOUNT BY SALE OF JEWELLERY. THE JEWELLERY SOLD WAS OUT OF TH E ITEMS THAT WERE DECLARED UNDER THE VDIS 97 SCHEME. THE LD. AR ACCORDINGLY PRAYED FOR DELETING THE ADDITION UPHELD BY THE LD. CIT(A). 4. THE LD. DR ON THE OTHER HAND TRIED TO JUSTIFY TH E FIRST APPELLATE AUTHORITY. 5. CONSIDERING THE ABOVE SUBMISSIONS WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISPOSING OF THE FIRST APPEAL BY APPLYING THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA LTD. (SUPRA ) AND SUSTAINING THE ADDITION WITHOUT DISCUSSING THE CASE OF THE ASSESSEE. THE SUBMISSION OF THE LD. AR BEFORE US IS THAT THE ASSESSEE HAS GOT SUFFICIENT EVIDENCES TO ESTABL ISH GENUINENESS OF ITS CLAIM IN QUESTION. UNDER THESE CIRCUMSTANCES AND TO MEET TH E END OF JUSTICE, WE SET ASIDE THE ISSUE TO THE FILE OF THE LD. CIT(A) TO CONSIDER IT AFRESH IN VIEW OF THE EVIDENCES IF ANY PRODUCED BY THE ASSESSEE AFTER AFFORDING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE PARTIES. THE LD. CIT(A) IS ALSO DIRECTED TO CON SIDER THE ALTERNATIVE GROUND RAISED ABOVE AFTER HEARING THE PARTIES. 6. CONSEQUENTLY APPEAL IS ALLOWED FOR STATISTICAL P URPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON 30 TH AUGUST, 2010. SD/- SD/- (D.KARUNAKARA RAO) (I.C. SUDHIR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 30 TH AUGUST, 2010 R ITA NO. 781/PN/2009 AY: 2006-07 PAGE 3 OF 3 COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. ITO, WARD 1, ICHALKARANJI 3. CIT(A), KOLHAPUR 4. CIT-I, KOLHAPUR 5. D.R, ITAT B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES, PUNE