Smt. Hemlataben Bipinchandra Patel, Baroda V. The Income tax Officer,Ward-3(1), Baroda

ITA 90/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73145 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Keywords: Unexplained cash credit; Business expenditure; Income from undisclosed sources

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ I.T.A. NO.90/AHD/2011 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2004-05) SMT.HEMLATABEN BIPINCHANDRA PATEL A-1, KRISHNADHAM DUPLEX NR.ISKCON TEMPLE GOTRI ROAD VADODARA 390 021 / VS. THE ITO WARD-3(1) BARODA ( !./)* !./ PAN/GIR NO. : ACTPP 2398 D ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : MS.URVASHI SHODHAN, A.R. ,-(+ / . / RESPONDENT BY : SHRI R.K. DHANESTA, SR.D.R. ' 0 / $1 / / / / DATE OF HEARING : 05/03/2014 23' / $1 / DATE OF PRONOUNCEMENT : 19/03/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, BARODA (CIT(A) FOR SHORT) DATED 21/09/2010 PERTAINING TO ASSESSMENT Y EAR (AY) 2004-05. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL:- 1. THE ASSESSMENT ORDER U/S.143(3) OF IT ACT PASSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE FIRST APPELLATE AUTHOR ITY IS BAD IN LAW AND DESERVED TO BE UNCALLED FOR. 2. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW AND ON FACTS IN TREATING AMOUNT OF UNSECURED LO AN OF ITA NO.90/AHD/2 011 SMT. HEMLATABEN BIPINCHANDRA PATEL VS. ITO ASST.YEAR 2004-05 - 2 - RS.2,21,000/- AS NON-GENUINE AND UNEXPLAINED CASH C REDIT. THE SAME DESERVES TO BE DELETED. 3. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW & ON FACTS IN TREATING AGRICULTURE INCOME OF RS.1,55,645/- AS INCOME FROM UNEXPLAINED SOURCES U/S.68 OF IT ACT. THE SAID ADDITION DESERVES TO BE DELETED. 4. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW & ON FACTS BY DISALLOWANCE OF INTEREST EXPEN SE OF RS.81,018/-. THE SAME DESERVES TO BE DELETED. 5. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW & ON FACTS BY DISALLOWING VARIOUS EXPENSE TO WARDS ADMINISTRATIVE EXPENSE OF RS.1,17,745/-. THE SAME DESERVES TO BE DELETED. 6. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW & ON FACTS BY DISALLOWING THE BUSINESS EXPEN SE OF RS.44,949/-. THE SAME DESERVES TO BE DELETED. 7. THE APPELLANT CRAVES TO RESERVE ITS RIGHT TO ADD, A LTER, AMEND, OR DELETE ANY GROUND OF APPEAL DURING THE COURSE OF HE ARING. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 19/12/2006, THEREBY THE ASSESSING OFFICER(AO) MADE ADDITION(S) IN RESPECT OF CASH CREDIT OF RS.2,21,000/- & INTEREST THEREON AT RS.81,018/-, IN RESPECT OF RECEIPT OF NET AGRICULTURAL INCOME OF RS.1,55,645/- AND IN RESPECT OF ADMINISTRATIVE/BUSINESS EXPENSES OF RS.1 ,17,745/- & RS.44,949/-. AGAINST THIS, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) DISMISSED THE APPEAL. N OW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD.CIT(A) DID NOT AFFORD OPPORTUNITY TO THE ASSESSEE TO REPRESENT HER CASE. SHE SUBMITTED THAT THE LD.CIT(A) WITHOUT GIVING OPPORTU NITY DISMISSED THE ITA NO.90/AHD/2 011 SMT. HEMLATABEN BIPINCHANDRA PATEL VS. ITO ASST.YEAR 2004-05 - 3 - APPEAL AND FAILED TO APPRECIATE THE FACTS IN RIGHT PERSPECTIVE. SHE SUBMITTED THAT A LETTER DATED 28/03/2011 WAS FILED BEFORE THE LD.CIT(A). 4. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT DESPITE HAVING BEEN GIVEN VARIOUS OPPORTUNITIES, THE ASSESSEE FAILED TO PRESE NT HER CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) VIDE PARA-2 OF HIS ORDER HAS OBSERVED AS UNDER:- 2. FOLLOWING NOTICES U/S.250 OF THE INCOME-TAX AC T WERE ISSUED BY THE C.I.T.(APPEALS)-II, BARODA:- SR.NO. DATE OF ISSUE DATE OF HEARING 1. 18.09.2007 04.10.2007 2. 28.02.2008 11.03.2008 3. 19.08.2008 04.09.2008 4. 10.11.2008 05.12.2008 5. 01.04.2009 15.04.2009 6. 15.04.2009 04.05.2009 7. 16.07.2010 09.08.2010 8. 31.08.2010 20.09.2010 DESPITE THE FACT THAT THERE WAS REPEATED NON-COMPLI ANCE. A LAST AND FINAL NOTICE WAS GIVEN TO THE APPELLANT TO ATTE ND THIS OFFICE ON 20.09.2010. 2.1. IN SPITE OF THE FACT THAT ALL NOTICES WERE ISS UED AND SENT THROUGH SPEED POST WHICH WERE DULY SERVED UPON THE APPELLANT, THE APPELLANT DID NOT CARE TO ATTEND ON THE ABOVE D ATES OF HEARING. THEREFORE, I AM LEFT WITH NO ALTERNATIVE BUT TO REL Y ON THE ASSESSMENT ORDER OF THE ASSESSING OFFICER PASSED U/ S.143(3) OF THE ACT AND DECIDE THE MATTER ON MERIT. ITA NO.90/AHD/2 011 SMT. HEMLATABEN BIPINCHANDRA PATEL VS. ITO ASST.YEAR 2004-05 - 4 - 2.2. ON GOING THROUGH THE FORM NO.35 FILED BY THE A PPELLANT, IT IS SEEN THAT THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE APPELLANT:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED BOTH IN LAW AND ON FACTS IN TREATING AMOUNT OF UNSECURED LOAN OF RS.2,21,000/-, IN AGGREGATE, AS NON GENUINE AND UNEXPLAINED CASH CREDIT AND ADDI NG THE SAID AMOUNT AS INCOME FROM UNDISCLOSED SOURCES U/S.68 OF THE INCOME- TAX ACT, 1961. II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED ASSESSING OFFICER IS NOT JUSTIFIED BOTH IN LAW AND ON FACTS IN TREATING AGRICULTURAL INCOME OF RS.1,55,645/-, AS I NCOME FROM UNEXPLAINED SOURCES AND THEREBY ADDING SAID AMOUNT TO THE TOTAL INCOME U/S.68 OF THE INCOME-TAX ACT, 1961. III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED BOTH IN LAW AND ON FACTS IN DISALLOWING INTEREST EXPENSES OF RS.81,018/-. IV) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED ASSESSING OFFICER IS NOT JUSTIFIED BOTH IN AW AND O N FACTS IN DISALLOWING VARIOUS EXPENSES OF RS.1,17,745/- IN AG GREGATE INCURRED TOWARDS OFFICE EXPENSES, SALARY, ADMINISTR ATIVE EXPENSES, PROMOTION EXPENSES, STATIONARY EXPENSES AND ZEROX E XPENSES. V) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE EARNED ASSESSING OFFICER IS NOT JUSTIFIED BOTH IN LAW AND ON FACTS IN FURTHER, DISALLOWING BUSINESS EXPENSES OF RS.44,949 /- IN AGGREGATE WITHOUT ANY REASON AND ADDING THE SAID AMOUNT TO TH E TOTAL INCOME. 5.1 THERE IS NO DISPUTE THAT THE APPEAL WAS DECIDED BY THE LD.CIT(A) IN THE ABSENCE OF THE ASSESSEE. AS PER LETTER DATED 2 8/03/2011 OF THE ASSESSEE PURPORTED TO HAVE BEEN ADDRESSED TO THE CO MMISSIONER OF ITA NO.90/AHD/2 011 SMT. HEMLATABEN BIPINCHANDRA PATEL VS. ITO ASST.YEAR 2004-05 - 5 - INCOME TAX (APPEALS-II), VADODARA, WHEREIN IT HAS B EEN MENTIONED AS UNDER:- FACTS: WE HAVE FILED THE APPEAL ON 18.01.2007. WE HAD AUTHORISED MR.SURESH THAKKAR C.A. TO PRESENT OUR CASE BEFORE YOUR HONOUR. TILL FEBRUARY 2009 THE NOTICES WHICH HAVE RECEIVED FROM YOUR OFFICE WE HAVE FORWARDED TO MR.SURESH THAKKAR TO ATTEND AND PRESENT THE CASE. ON ENQUIRY AND FOLLOW UP WITH MR.SURESH THAKKAR, IT HAS BEEN REPORTED THAT UP TO FEBRUARY 2009 HE HAS ATTENDED AND REPRESENTED THE CASE BEFORE YOUR HONOR. DURING THE PERIOD FO APRIL 2009 AND MAY 2009, MR.B. M. PATEL, MYSELF AND MR. R.C. PATEL HAVE ATTENDED AND PRESENTED THE CASE AND SUBMITTED THE REQUIRED DETAILS AND INFORMATION. DURING THE HEARING HELD IN MAY 2009, THE C.I.T.-II (MS. AMITA SAINI) HAS CONCLUDED THE HEARING PROCEEDING AND INFORMED US THAT THE FINAL ORDER WILL BE PROCESSED IN DUE COURSE. AFTER MAY 2009 WE HAVE NOT RECEIVED ANY LETTER FOR HEARING FROM YOUR OFFICE. AT LAST WE HAVE TO STATE THAT, WE HAVE TAKEN UTMOST DUE CARE TO ATTEND HEARING IN RESEPCT OF THE NOTICES RECEFIED BY YOU. THANKING YOU, YOURS FAITHFULLY, SD/- (HEMLATA BIPINCHANDRA PATEL) 5.2. AFTER CONSIDERING THE TOTALITY OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE INTERE ST OF JUSTICE WOULD BE SUBSERVED IF THE ASSESSEE IS GRANTED ANOTHER FINAL OPPORTUNITY TO REPRESENT HER CASE BEFORE THE LD.CIT(A). ACCORDINGLY, WE HER EBY SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE THE MATTER TO H IS FILE FOR DECISION AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE IS HER EBY DIRECTED TO APPEAR BEFORE THE LD.CIT(A) WITHIN TWO MONTHS FROM THE DAT E OF PRONOUNCEMENT ITA NO.90/AHD/2 011 SMT. HEMLATABEN BIPINCHANDRA PATEL VS. ITO ASST.YEAR 2004-05 - 6 - OF THIS ORDER. BEFORE PARTING WITH, IT IS TO BE RE CORDED THAT THE LD.COUNSEL FOR THE ASSESSEE HAS GIVEN UNDERTAKING THAT SHE WIL L ENSURE THAT THE ASSESSEE OR HER REPRESENTATIVE WILL APPEAR BEFORE T HE LD.CIT(A) WITHIN TWO MONTHS FROM THE DATE OF PRONOUNCEMENT OF THIS O RDER. IN CASE, THE ASSESSEE FAILS TO APPEAR BEFORE THE LD.CIT(A) WITHI N TWO MONTHS, THE LD.CIT(A) WOULD BE AT LIBERTY TO DECIDE THIS APPEAL IN THE ABSENCE OF THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED AS P ER THE DISCUSSION MADE HEREINABOVE. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/ 03 /2014 71.., .../ T.C. NAIR, SR. PS 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-II, BARODA 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD