Shri Ramesh Rijhwani, Indore V. ACIT-1(2), Indore

ITA 814/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0697 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 13-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MAURYA
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c)

Judgement Text

RAMESH RIJHWANI 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.814/IND/2019 ASSESSMENT YEAR: 2008-09 RAMESH RIJHWANI INDORE / VS. ACIT - 1(2) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. ABVPR8541H APPELLANT BY SMT. SHREYA JAIN, CA REVENUE BY SHRI R.P. M A URYA , SR. DR DATE OF HEARING: 10.06.2020 DATE OF PRONOUNCEMENT: 12.06.2020 / O R D E R PER KUL BHARAT, J.M: THE APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(APPEALS)-III, INDORE, DATED 31.05.20 19 PERTAINING TO ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS RAISED FO LLOWING GROUNDS OF APPEAL: 1. THAT THE EX-PARTE ORDER PASSED BY THE LD. CITCA ) IS BAD IN LAW, ILLEGAL, WITHOUT JURISDICTION AND ON HY POTHETICAL GROUNDS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE RAMESH RIJHWANI 2 AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE REASON FOR NOT APPEARING ON THE DATE OF HE ARING WAS THAT THE WIFE AND NEPHEW OF THE ASSESSEE WAS SERIOUSLY ILL AND HOSPITALIZED. MOREOVER THE NEPHEW OF THE ASSESSEE COULD NOT BE SURVIVED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CITCA) ERRED IN PASSING EX-PARTE ORDER WITHOUT DECIDING FOLLOWING GROUNDS OF APPEALS ALL MERITS; 1. THAT THE APPEAL IS STILL PENDING WITH ITAT INDORE A ND AFTER THAT TO LEVIED THE PENALTY IS UNFORTUNATE AND BAD IN LAW. THAT ALL OTHER GROUND AT THE TIME OF HEARING .. RS.2,22,974/- 2. THE APPELLANT DESIRE TO RAISE FOLLOWING FRESH GROUN DS FIRST TIME BEFORE THE HON'BLE TRIBUNAL WHICH ARE NOT RAIS ED BEFORE THE LD. CIT(A); 1. THAT THE LD. A.O ERRED IN IMPOSING PENALTY FOR CONCEALMENT OF INCOME AT RS.2,22,974/- ON MECHANICA L BASIS WITHOUT RECORDING SATISFACTION AND WITHOUT MENTIONING IN THE ASSESSMENT ORDER OR IN THE PENALT Y ORDER THAT PENALTY IS FOR CONCEALMENT OF PARTICULAR S OF INCOME OR FOR FILING OF INACCURATE PARTICULARS OF I NCOME. 2. THAT THE LD. A.O ERRED IN IMPOSING PENALTY U/S 2 71 (1)( C) ON THE BASIS OF NOTICE ISSUED IN THE PRINTE D FORM WITHOUT STRIKING OUT THEREIN WHETHER THE PENALTY IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FOR FILING OF INACCURATE PARTICULARS OF INCOME. THE ABOVE GROUNDS ARE LEGAL GROUNDS HENCE IT IS PRA YED THAT IN VIEW OF THE DECISION 'OF HON'BLE SUPREME CO URT IN THE CASE OF NATIONAL THERMAL 'POWER CO: LTD VIS CIT APPELLANT BE' PERMITTED TO MAKE SUBMISSION AND ARGUMENTS ON THE ABOVE GROUND. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A WRITTE N SUBMISSION THAT THE SEARCH ACTION U/S 132(1) WAS CARRIED ON 18 .07.2007 AT THE RAMESH RIJHWANI 3 RESIDENCE AND BUSINESS PREMISES OF THE ASSESSEE. DU RING THE COURSE OF SEARCH PROCEEDINGS CASH OF RS.6,71,005/- WAS FOU ND FROM THE POSSESSION OF THE ASSESSEE OUT OF WHICH RS.14,407/- WAS FOUND EXPLAINED AND RS.6,56,000/- WAS FOUND UNEXPLAINED B Y THE SEARCH PARTY. DURING THE SOURCES OF SEARCH AS WELL AS ASSE SSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT HE IS A MA NAGING DIRECTOR OF THE MONICA GALAXY PVT. LTD. AND WITH THE CONSENT OF ALL THE DIRECTORS HE RETAINED THE CASH BALANCES OF THE COMP ANY THIS PREMISES EVERY NIGHT OR ON HOLIDAYS. AFTER GIVING A LL THE NECESSARY EXPLANATIONS, EVIDENCES AND AFFIDAVIT OF ALL THE DI RECTORS OF THE COMPANY, THE LD. AO MADE ADDITION OF RS.6,56,000/- AND TREATED THE SAME AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE. THE LD. AO ISSUED NOTICE U/S 271(1)(C) AND IMPOSED PENA LTY OF RS.2,22,974/-. THE APPEAL BEFORE THE LD. CIT(A), HO WEVER ON THE DATE OF HEARING NOBODY APPEARED FOR TO THE REASON THAT A SSESSEES WIFE AND NEPHEW WAS SERIOUSLY ILL AND HOSPITALIZED. MORE OVER THE NEPHEW OF THE ASSESSEE COULD NOT BE SURVIVED. THE L D. CIT(A) HAS NOT DECIDED THE GROUNDS OF APPEAL ON MERITS AND HAS BEEN DECIDED EX-PARTE. 3. LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE SE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORIT IES BELOW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF LOWER AUTHORITIES. CONSIDERING THE FACTS AND CIRCUMSTANCE S OF THE CASE, WE ARE OF THE VIEW THAT SINCE NO MEANINGFUL OPPORTUNIT Y WAS PROVIDED RAMESH RIJHWANI 4 TO THE ASSESSEE, IN THE INTEREST OF JUSTICE, THE AS SESSEES MATTER IS LIABLE TO BE RECONSIDERED BY THE LD. CIT(A). ACCORD INGLY, THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTO RED BACK TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) SHOULD DECID E THE APPEAL AFRESH ON MERITS IN TERMS AS INDICATED HEREINABOVE AFTER A FFORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER L AW AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE/APPEAR BEFOR E LD. CIT(A) IN THIS REGARD. 5. IN RESULT, APPEALS FILED BY THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12.06.20 20. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 12/06/2020 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE