Shri Prakash Ratan Choudhari, Vijayapur V. Income Tax Officer- Ward - 1, Bijapur

ITA 853/BANG/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8607 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 23-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PREETHI S PATEL SRI GANES
• Keywords: Unexplained investment; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT ITA NO. 853/BANG/2019 ASSESSMENT YEAR : 2013 - 14 SHRI PRAKASH R. CHOUDHARY, C/O RATNA PALACE, NEAR SHOLAPUR BYE-PASS ROAD, SHOLAPUR ROAD, VIJAYAPUR - 586 101 PAN: AEZPC308 6M VS. THE INCOME TAX OFFICER, WARD-1, BIJAPUR. APP ELLANT RESPONDENT APP ELLANT BY : MS. PREETHI S PATEL, ADVOCATE. RESPONDENT BY : SRI.GANESH S. GHARE, STANDING COUNSEL. DATE O F HEARING : 29.08.2019 DATE OF PRONOUNCEMENT : 04 .09.2019 O R D E R THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER DATED 6.2.2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), B ELAGAVI PASSED UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 FOR ASSESSM ENT YEAR 2013-14. 2. THE ASSESSEE IS AN INDIVIDUAL. HE IS PARTNER IN A PARTNERSHIP FIRM M/S. RATNA PALACE. IN THE COURSE OF A SURVEY U/S.1 33A OF THE INCOME TAX ACT, 1961 (ACT), THE STATEMENT OF THE ASSESSEE AND ANOTHER PARTNER SRI GAJANAN WAS RECORDED WHEREIN THEY ADMITTED HAVING M ADE UNEXPLAINED INVESTMENT IN CONSTRUCTION OF A COMPLEX IN BIJAPUR. THE ASSESSEE ADMITTED A SUM OF RS.10 LACS FOR AY 2013-14 AS UNEXPLAINED I NVESTMENTS IN CONSTRUCTION OF COMPLEX AND OFFERED THE SAID SUM TO TAX IN THE RETURN OF ITA NO. 853/BANG/2019 PAGE 2 OF 4 INCOME FILED FOR AY 2013-14. THE SAME WAS BROUGHT TO TAX IN AN ORDER PASSED BY THE AO U/S.143(3) OF THE ACT DATED 31.7.2 015. 3. SUBSEQUENTLY THE AO ISSUED A NOTICE U/S.154 OF T HE ACT AND PASSED AN ORDER DATED 3.8.2017 IN WHICH HE HELD THAT SINCE THE INCOME OF RS.10 LACS IS OFFERED TO TAX AS UNEXPLAINED INVESTMENTS U /S.69B OF THE ACT, THE RATE OF TAX APPLICABLE ON SUCH INCOME WAS 30% AS PE R SEC.115BBE OF THE ACT AND NOT AT A LESSER RATE OF TAX, AS WAS DETERMI NED IN THE ORDER OF ASSESSMENT DATED 31.7.2015. 4. AGAINST THE AFORESAID ORDER OF THE AO, THE ASSES SEE FILED APPEAL BEFORE CIT(A) CONTENDING THAT SEC.115BBE WAS NOT AP PLICABLE TO THE FACTS OF THE CASE. THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 27.12.2018, 22.01.2019 & 5.02.2019. ACCORDING TO T HE CIT(A) NOTICES WERE ISSUED FOR THE ABOVE HEARING DATES BUT NONE APPEARE D ON THE STIPULATED DATES OR ANY SUBMISSIONS WERE FILED. IN THE CIRCUM STANCES, THE CIT(A) DECIDED THE APPEAL EX PARTE AND HELD THAT THE ACTION OF THE AO IN PASSING THE ORDER U/S.154 OF THE ACT WAS VALID. AGAINST THE AFORESAID ORDER THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS PASSED EX PARTE ORDER AND PRAYED THAT THE ASSESSEE COULD NOT ATTEND THE HEARING PROCEEDINGS AND PRAYED FOR AN OPPORTUNITY TO PRESENT THE CASE OF THE ASSESSEE ON MERITS. SHE AL SO BROUGHT TO OUR NOTICE THAT ON IDENTICAL FACTS IN THE CASE OF ANOTHER PART NER OF THE FIRM M/S. RATNA PALACE, SHRI GAJANAN , THE C BENCH OF ITAT IN ITA NO. 852/BANG/2019 ORDER DATED 26.8.2019 FOR AY 2013-14 SET ASIDE SIMI LAR EX PARTE ORDER OF CIT(A) WITH THE FOLLOWING OBSERVATIONS:- ITA NO. 853/BANG/2019 PAGE 3 OF 4 3. WE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIAL ON RECORD. THE LEARNED AUTHORISED REPRESENTATIVES CONTENTION THAT THE CIT(APPEALS) HAS PASSED EXPARTE ORDER AS N ONE APPEARED ON BEHALF OF THE ASSESSEE NOR ADJOURNMENT PETITION WAS FILED. ON PERUSAL OF THE ORDER OF THE CIT(APPEALS) AT PARA 4 , WE FOUND THAT THE ASSESSEES CASE WAS POSTED FOR HEARING ON 27.1 2.2018, 22.01.2019 & 5.02.2019, NONE APPEARED ON THE STIPUL ATED DATES OR ANY SUBMISSIONS WERE FILED. FURTHER ON PERUSAL OF THE ASSESSMENT ORDER, WE FOUND THAT THERE WAS SURVEY OP ERATION AND THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSED THE TOTAL INCOME OF RS.10,74,350. THE FACT REMAINS THAT THE ASSESSE E CHOSES NOT TO APPEAR IN THE APPELLATE PROCEEDINGS THOUGH THE CIT( APPEALS) HAS PROVIDED ADEQUATE OPPORTUNITIES OF HEARING. THE LE ARNED AUTHORISED REPRESENTATIVE COULD NOT EXPLAIN THE REA SONS FOR NON- APPEARANCE. WE CONSIDERING THE PRINCIPLE OF NATUR AL JUSTICE, ARE OF THE OPINION THAT THERE MUST BE VARIOUS REASONS F OR THE ASSESSEE FOR NON-APPEARANCE AND BY DELAYING THE PROCEEDINGS , THE ASSESSEE SHALL NOT GAIN ANY BENEFIT AND ACCORDING T O MEET THE ENDS OF JUSTICE, WE RESTORE THE ENTIRE DISPUTED ISSUE TO THE FILE OF CIT(APPEALS) TO ADJUDICATE AFRESH ON MERITS AND PRO VIDE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND FURTHER THE ASSESSEE SHALL CO-OPERATE IN SUBMITTING THE INFORMA TION FOR EARLY DISPOSAL OF THE APPEAL. ACCORDINGLY, THE GROUNDS O F APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. THE LEARNED DR OPPOSED THE PRAYER FOR SETTING AS IDE. 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND FIN D THAT THE FACTS AND CIRCUMSTANCES IN THE CASE OF THE ASSESSEE ARE SIMIL AR TO THE CASE DECIDED BY THE TRIBUNAL REFERRED TO ABOVE. MOREOVER, THE NO TICES SENT BY THE CIT(A) WERE CLAIMED TO HAVE BEEN NOT SERVED ON THE ASSESSE E. FOLLOWING THE ORDER OF THE TRIBUNAL, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ENTIRE DISPUTED ISSUE TO THE FILE OF CIT(APPEALS) T O ADJUDICATE AFRESH ON MERITS AND PROVIDE REASONABLE OPPORTUNITY OF HEARIN G TO THE ASSESSEE AND FURTHER THE ASSESSEE SHALL CO-OPERATE FOR EARLY DIS POSAL OF THE APPEAL. ITA NO. 853/BANG/2019 PAGE 4 OF 4 6. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPTEMBER, 2019. SD/- ( N.V. VASUDEVAN ) VICE PRESIDENT BANGALORE, DATED, THE 04 TH SEPTEMBER, 2019. / D ESAI S MURTHY / COPY TO: 1. A PPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FIL E BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.