Paresh Nagjibhai Mendapara, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3), RAJKOT-GUJARAT

ITA 9/RJT/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76421 (ITAT-RAJKOT)
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI
• Assessee Lawyers: DR ADHIA
• Keywords: Opportunity of being heard; Procedural lapse
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 09/RJT/2014 ASSESSMENT YEAR : 2009-10 PARESH NAGJIBHAI MENDAPARA 1-CHAMPAKNAGAR, SANT KABIR ROAD, OPP. SHANKAR VIJAY PAN, RAJKOT PAN : AJTPM 8148 D ( / APPELLANT) THE I.T.O., WARD-2(3), RAJKOT / RESPONDENT / ASSESSEE BY SHRI D. R. ADHIA, AR / REVENUE BY DR. JAYANT B. JHAVERI, DR / DATE OF HEARING 17.01.2014 !'# / DATE OF PRONOUNCEMENT 29.01.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 20.11.2013 OF CIT(A)- III, RAJKOT FOR THE ASSESSMENT YEAR 2009-10. 2. THE VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UNDER:- 1.1 THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN M AKING ENHANCEMENT OF RS.2,00,000/- WITHOUT PROVIDING ANY OPPORTUNITY TO MAKE SUBMISSIONS AGAINST IT, THOUGH PROVIDED UNDER THE STATUTE. THE ENHANCEM ENT NEEDS CANCELLATION. 1.2 WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN MAKING ENHANCEMENT OF RS.2,00,000/-. THE ENHANCEMENT NEEDS CANCELLATION. 1.3 WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN MAKING ENHANCEMENT OF RS.2,00,000/- ON ESTIMATION BASIS WI THOUT BRINGING COGENT MATERIAL. THE ENHANCEMENT NEEDS CANCELLATION. 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.2,05,200/-. THE ADDITION NEEDS DELETION. 3. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL, ACCOUNTING AND ADMINISTRATIVE ASPECTS, NO ADDITION AMOUNTING TO RS .2,05,200/- OUGHT TO HAVE BEEN MADE. THE ADDITIONS NEEDS DELETION. 4. WITHOUT PREJUDICE, THE NET PROFIT OUGHT TO HAVE BEEN ACCEPTED AT 5% INSTEAD OF MAKING ADDITION AT 10% AMOUNTING TO RS.2 ,05,200/-. THE ADDITION NEEDS DELETION. 5. WITHOUT PREJUDICE, THE ADDITION MADE AT 10% AMOU NTING TO RS.2,05,200/- IS VERY EXCESSIVE AND NEEDS MODIFICAT ION TO 5%. 6. WITHOUT PREJUDICE, THE ASSESSMENT MADE IS BAD IN LAW AND DESERVES ANNULMENT. 2 09-RJT-2014 - PARESH N MENDPARA (SMC) 7. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND R EASONABLE OPPORTUNITY HAS BEEN PROVIDED WHILE FRAMING ASSESSMENT. THE ASS ESSMENT NEEDS ANNULMENT. 8. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND R EASONABLE OPPORTUNITY HAS BEEN PROVIDED WHILE PASSING APPEAL ORDER. THE A SSESSMENT NEEDS ANNULMENT. 9. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AN D/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKE S PLACE. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D.R. ADHIA, AR, APPEARED AND POINTED OUT THAT THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3) ON 14.12.2011 AT TOTAL INCOME OF RS.3,48,190 /-, THEREBY MAKING THE NET ADDITION OF RS.2,05,200/- U/S 69 OF THE INCOME-TAX ACT, 1961. IN THE IMPUGNED ORDER, THE LD. CIT(A) NOT ONLY DISMISSED THE APPEAL OF THE ASSESSEE BUT ALSO ENHANCED THE ASSESSED INCOME BY RS.2,00,000/- WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AS PROVIDED IN SUB-SECTION (2) OF SECTION 251 OF THE INCOME-TAX ACT, 1961. THEREFORE, THE ENHANCEMENT MADE BY THE LD. CIT(A) A ND THE ADDITION OF RS.2,05,200/- MADE BY THE ASSESSING OFFICER ALSO BE DELETED. 4. AS AGAINST THE AFORESAID SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE, DR.JAYANT B. JHAVERI, DR, POINTED OUT THAT THIS IS ONLY A PROCEDURAL LAPSE; THEREFORE, THE IMPUGNED ORDER OF LD. CIT(A) BE SET ASIDE AND H E MAY BE DIRECTED TO GIVE NOTICE OF ENHANCEMENT UNDER SUB-SECTION (2) OF SECTION 251 AND THEREAFTER DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LA W. 5. RIVAL SUBMISSIONS WERE CONSIDERED. ADMITTEDLY, I N THE IMPUGNED ORDER, THE LD. CIT(A) ENHANCED THE ASSESSED INCOME BY RS.2,00,000/ -,COMPLETELY IGNORING THE PROVISIONS CONTAINED IN SUB-SECTION (2) OF SECTION 251 OF THE INCOME-TAX ACT, 1961, WHICH READS AS UNDER:- S. 251(2) THE COMMISSIONER (APPEALS) SHALL NOT ENH ANCE AN ASSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE A PPELLANT HAS HAD A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUC H ENHANCEMENT OR REDUCTION. PERUSAL OF THE AFORESAID SUB-SECTION (2) OF SECTION 251 CLEARLY INDICATE THAT ONLY AFTER GIVING OPPORTUNITY OF SHOW-CAUSE, THE LD . CIT(A) CAN ENHANCE THE 3 09-RJT-2014 - PARESH N MENDPARA (SMC) ASSESSMENT. ADMITTEDLY, IN THE IMPUGNED ORDER, LD. CIT(A) ENHANCED THE INCOME OF THE ASSESSEE BY RS.2,00,000/- WITHOUT GIVING NOTICE OF ENHANCEMENT AS PROVIDED IN SECTION 251 OF THE INCOME-TAX ACT, 1961. THIS IS PU RELY A PROCEDURAL LAPSE. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF LD. CIT( A) AND DIRECT HIM TO RE-DECIDE ALL THE GROUNDS OF APPEAL OF THE ASSESSEE AFRESH KEEPIN G IN VIEW THE PROVISIONS CONTAINED IN SUB-SECTION (2) OF SECTION 251 OF THE INCOME-TAX ACT, 1961 AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 29.01.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- PARESH NAGJIBHAI MENDAPARA, 1-CHAMPAK NAGAR, SANT KABIR ROAD, OPP. SHANKAR VIJAY PAN, RAJKOT 2. / RESPONDENT- THE I.T.O., WARD-2(3),RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-II, RAJKOT 4. * * 2- / CIT (A)-III, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT