Yadagiri Magali, R.R. Dsit, Hyderabad V. ITO, Ward-1, Vikarabad, Vikarabad

ITA 849/HYD/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1710 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 19-11-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 16-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: MOHD IQBAL HUSSAIN
• Keywords: Unexplained investment
• Section: 143(3); 201; 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B - SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.849/HYD/2017 ASSESSMENT YEAR: 2011 - 12 MANGALI YADAGIRI, 2 - 97, CHEVELLA RR DISTRICT. PAN: AMEPM 2565 J VS. INCOME TAX OFFICER, WARD - 1, VIKARABAD, R.R. DISTRICT. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI MOHD. IQBAL HUSSAIN REVENUE BY: SRI NILANJAN DEY, DR DATE OF HEARING: 19/11/2019 DATE OF PRONOUNCEMENT: 05 /1 2 /2019 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 2, HYDERABAD IN APPEAL NO.0018/2014 - 15, DATED 31/10/2016 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE A.Y. 201 1 - 12 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HE R APPEAL: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX - (APPEALS) - 2 HYDERABAD, IS AGAINST THE LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER. 3. THE LEAR NED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, THE PROFIT IS ESTIMATED AT 5% ON THE GOODS PUT TO SALE, WHICH IS AT RS.1,74,80,640/ - . 4. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER, WH EREIN, TURNOVER IS ESTIMATED AT RS .39,11,361/ - AND ESTIMATED THE INCOME AT 8% WHICH RESULTED AN ADDITION OF RS.3,12,908/ - . 2 5. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSES S ING OFFICER, WHEREIN, AN ADDITION OF RS.15,60,000/ - IS MAD E U /S 68 OF THE IT ACT. 6. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE A SSESSING OFFICER, WHEREIN, AN ADDITION OF RS.3,29,930/ - IS MADE U /S 69 OF THE IT ACT AS UNEXPLAINED INVESTMENT. 7. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER, WHEREIN, AN ADDITION OF RS.1,29,584/ - IS MADE U/ S 69 OF THE IT ACT AS UNEXPLAINED INVESTMENT IN THE BANK. 8. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, IF IT IS CONSIDERED NECESSARY. ADDITIONAL GROUND: THE LD COMMISSIONER OUGHT TO HAVE ACCORDED ONE MORE OPPORTUNITY AND SHOULD HAVE SERVED THE NOTICE ON THE ASSESSEE DIRECTLY EITHER BY POST OR THROUGH THE ASSESSING OFFICER. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL . LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGU ED THAT SEVERAL OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO P ASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 3 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON FOUR OCCASIONS I.E., 05/07/2016, 29/07/2016, 17/08/2016 AND FINALLY ON 28/10/2016 . HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE ABOVEMENTIONED DATES OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. IN THIS SITUATION, I DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, AND IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE A T LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 05 TH DECEMBER , 2019. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 05 TH DECEMBER , 2019 4 OKK COPY TO: - 1) MOHD. AFZAL, ADVOCATE, 11 - 5 - 465, SHERSONS RESIDENCY, FLAT NO. 402, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD - 04. 2) INCOME TAX OFFICER, WARD - 1, VIKARABAD 500 004. 3) THE CIT(A) - 2, HYDERABAD 4) THE PR. CIT - 2, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE