Appeal details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 1617 (ITAT-SURAT)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 7 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-09-2022
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
27-09-2022
Assessment Year
2015-2016
Appeal Filed On
10-02-2019
Judgement Text
आयकर अपीलȣय अͬधकरण, स ु रत Ûयायपीठ, स ु रत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr ARJUN LAL SAINI, ACCOUNTANT MEMBER आ.अ.सं./ITA No.85/SRT/2019 (Assessment Year 2015-16) (Hearing in Physical Court) Vipin Indramalji Jariwala 5/83, 5 th Floor, Jash Apartment, Somnath Mahadev Road, Umra, Surat-395007 PAN : AAYPJ 7345 K Vs Deputy Commissioner of Income-tax, Central Circle- 3, Aaykar Bhawan, Majura Gate, Surat-395002 अपीलाथȸ/Appellant Ĥ×यथȸ /Respondent Ǔनधा[ǐरती कȧ ओर से /Assessee by Shri Shaunak Zaveri, C.A राजèव कȧ ओर से /Revenue by Shri Vinod Kumar, Sr-DR सुनवाई की तारीख/Date of hearing 28.09.2022 उɮघोषणा कȧ तारȣख/Date of pronouncement 28.09.2022 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax (Appeals)-4, Surat [for short to as “Ld.CIT(A)”] dated 22.01.2019 for the assessment year 2015- 16, which in turn arises out of assessment order passed under section 143(3) of Income-Tax Act, 1961 (‘the Act’). The assessee has raised the following grounds of appeal: - “1.0 That on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Aps)-IV, Surat [here-in-after referred to ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 2 as Ld. CIT(Appeals) was not justified and grossly erred in not providing an additional opportunity to appellant of hearing which remain unattended as appellant’s concern person has left the job and non of the heading notice did not came to knowledge of appellant. 2.0 That on the facts and in the circumstances of the assessee, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the A.O in confirming the order passed u/s 143(3) of the I.T. Act, 1961 which is incomplete and also bad on facts. 3.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition made on the account of Rs.1,44,000/- on the basis of Annexure BS-53 page no.79 of the diary taken to be representing unexplained cash payments. 4.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition made on account of Rs.60,00,000/- on the basis of Annexure BS – 53 page no.61, 62 of the diary taken to be representing unexplained cash receipts. 5.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the Assessing Officer in by accepting in solely relying upon third party evidences for making the addition in question and not providing the appellant the opportunity of cross examination before jumping to the conclusion . ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 3 6.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the Assessing Officer in by accepting the to establish the identity of the appellant and thereby to prove beyond doubt that the name as appearing in the seized documents is of the appellant only and establish the identity of any such Shri Atul Adani and / or Shri Sanjay Shah. 7.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the addition of rs.60,00,000/- as unexplained cash receipts in the hands of the appellant in the light of the fact that as per the contention of the firm M/s Param Properties, the transaction is of loan taken by the appellant. 8.0 That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the action of the AO in by accepting the assessment order in not considering the fact that the firm M/s Param Properties has clearly stated, in their reply in response to the notice u/s 133(6) of the Income Tax Act, 1961, that the total transaction was of Rs.50,00,000/- only.” 2. At the outset of hearing, Ld. AR for the assessee submits that Ld. CIT(A) passed the order in ex parte proceedings and dismissed the appeal without adjudicating the grounds of appeals on merit. The assessee was not given fair and proper opportunities of hearing to the assessee. The ld. AR for the ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 4 assessee submits that assessee has a good case on merit and is likely to succeed, if one more opportunity is allowed to hear the cases on merits and the assessee be allowed to file necessary evidence in support of his claims. The ld. AR for the assessee submits that assessee was not attended before the Ld. CIT(A) as the notice were issued on “A-402, Malabar Hill Apartment, Umra, Surat-395007” but the assessees address was 5/83, 5 th Floor, Jash Apartment, Somnath Mahadev Road, Umra, Surat-395007 as per “From-36” in Appeal Form filed by assessee. The ld AR for assessee further submits that ld CIT(A) issued only two notices, however, in the order he has mentioned three notices, which is factually incorrect as per the details mentioned on ITBA portal. The ld. AR for the assessee submits that he undertakes on behalf of the assessee to be vigilant in future and to make the proper compliance of the notices and will not default in future for the purpose of service of notice(es) given in Form-36 of Appeal Form. 3. On the other hand, Ld. Sr-DR for the Revenue opposed the contentions of Ld. AR for the assessee and would submit that ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 5 assessee was given sufficient and reasonable opportunities of hearing, however, the assessee failed to make any compliance despite the service of two consecutive dates. The ld Sr DR for the revenue submits that the notices were generated as per the address available in the system. As per record the address in the system was of assessees address mentioned in the record of his PAN. The ld Sr DR for the revenue submits that and now assessee does not deserve further opportunity. 4. We have considered the rival submissions of both the parties and have gone through the orders of the authorities below. We find that Assessing Officer passed assessment order under section 143(3) on 29.12.2017. In the assessment order, the Assessing Officer made addition of Rs.1.44 lakhs on account of unexplained cash payments and addition of Rs.60 lakhs on account of unexplained cash receipts. The Ld. CIT(A) upheld the addition in ex parte order by taking view that three notices were served through notices but none of the notices were compiled by the assessee. Before us, the ld. AR for the assessee made submission that assessee was not received such notices owing to wrong address mentioned on those ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 6 notices A-402, Malabar Hill Apartment, Umra, Surat-395007” and could not made compliance in time and that in future he undertakes on behalf of assessee to make proper compliance. We instead of going into the controversy, if the notices sent by the assessee was not properly complied or not, we find that the order of Ld. CIT(A) is not in accordance with mandate of Section 250(6) of the Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points of determination (grounds of appeals), decision therein on and reasons for such decision. So far as objection of ld DR is concerned, that the assessee was given sufficient opportunity and that he is not eligible for further opportunity. We find that for non-compliance of the notices of lower authorities, the assessee has to bear the cost of appeal fees. 5. Considering the facts and circumstances of the present case that Ld. CIT(A) passed ex parte order without adjudicating the grounds of appeal raised by the assessee and the assessee was not afforded fit and proper opportunity, thus, we are of the view that assessee deserves hearing on merit. Therefore, the ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 7 grounds of appeal raised by assessee are restored back to the file of Ld. CIT(A) to adjudicate all the grounds of appeal on merit. Needless to say that before passing the order, ld. CIT(A) shall grant fair and proper opportunity of hearing to the assessee. The assessee is also directed to appear before Ld. CIT(A) as and when the date of hearing and to provide all necessary evidence & information without any further delay and not to seek adjournment without any valid reasons. In the result, appeal of assessee is allowed for statistical purposes in above terms. 6. In the result, appeal of assessee is allowed for statistical purposes in above terms. Order pronounced in the open court on 28/09/2022 at the time of hearing. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) [लेखा सद᭭य/ACCOUNTANT MEMBER] [᭠याियक सद᭭य JUDICIAL MEMBER] Surat, Dated: 28/09/2022 Dkp. Out Sourcing Sr.P.S ITA No.85/SRT/2019 (A.Y 15-16) Vipin I. Jariwala 8 Copy to: 1. Appellant- 2. Respondent- 3. CIT(A)- 4. CIT 5. DR 6. Guard File True copy/ By order // True Copy // Sr. P.S./Assistant Registrar, ITAT, Surat
