Mansi Builders Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(1), Ahmedabad

ITA 906/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9029 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-09-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 24-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: G C PIPARA
• Keywords: Opportunity of being heard; Validity of assessment; Set aside
• Section: 40A(3); 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI H. L. KARWA, JM AND N. S. SAINI, AM) ITA NO.906/AHD/2009 A. Y.: 1998-99 MANSI BUILDERS, VIKASH CHAMBERS, OPP. UNIVERSITY HOSTEL, NR. DADA SAHEB NA PAGLA, NAVRANGPURA, AHMEDABAD PA NO. AAACM 0084 F VS THE A. C. I. T., CENT. CIRCLE-1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI G. C. PIPARA, AR DEPARTMENT BY SHRI SHELLEY JINDAL, DR O R D E R BY BENCH: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST ORDER OF THE CIT(A)-IV, AHMEDABAD DATED 13-03-2007 RELATING TO ASSESSMENT YEARS 1996-97. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS: 1. THE LEARNED CIT(A) HAS ERRED IN REJECTING FIRST 3 GROUNDS OF APPEAL, ON THE GROUND THAT THE SAME ARE GENERAL IN NATURE AND REQUIRE NO COMMENTS. THE SAID GROUNDS OF APPEA L INVOLVES THE VALIDITY OF ASSESSMENT, ADDITION OF RS.33,60,365/- ON ACCOUNT OF UNDISCLOSED INCOME AN D THEREFORE, THE LEARNED CIT(A) HAS ERRED IN NOT ADJU DICATING THE SAID 3 GROUNDS OF APPEAL RAISED BEFORE HIM. THE APP ELLANT THEREFORE, PRAYS THAT THE NECESSARY DIRECTION MAY P LEASE BE ISSUED TO THE LEARNED CIT(A) FOR ADJUDICATING THE S AID 3 GROUNDS OF APPEAL ON MERITS. 2. THE LEARNED CIT(A) ALSO ERRED WHILE NOT CONSIDER ING THE WRITTEN SUBMISSION DATED 21/08/2006 FILED BEFORE HIM, WHILE DISPOSING THE SAID APPEAL. THE LEARNED CIT(A) THOUG H MENTIONED THAT WRITTEN SUBMISSION HAS BEEN FILED, B UT HAS ITA NO.906/AHD/2009 MANSI BUILDERS LIMITED 2 ERRED IN NOT CONSIDERING THE SAID SUBMISSION IN ITS ENTIRETY. ACCORDINGLY, THE IMPUGNED ORDER OF THE CIT(A) IS BA D IN LAW AND THUS, REQUIRES TO BE SET-ASIDE. 3. THE LEARNED CIT(A) HAS ALSO ERRED IN LAW WHILE C ONFIRMING THE ORDER OF THE A. O. PASSED U/S. 143(3) R. W. S. 147 DATED 31/03/2006. THE SAID ORDER IS BAD IN LAW AND THUS, REQUIRES TO BE QUASHED. 4. THE LEARNED CIT(A) HAS ALSO ERRED IN LAW AS WELL AS ON FACTS WHILE CONFIRMING THE ADDITION OF RS.33,60,365/- ON ACCOUNT OF UNDISCLOSED INCOME AS ADDED BY THE A.O. IN VIEW OF THE FACTS OF THE CASE AND THE SUBMISSIONS, THE SAID ADDITION REQUIRES TO BE DELETED. 5. THE LEARNED CIT(A) HAS ALSO ERRED IN LAW AS WELL AS ON FACTS WHILE CONFIRMING ADDITION OF RS.81,63,499/- MADE BY THE A. O. U/S. 43A(3) OF THE ACT. IN VIEW OF THE FACTS OF THE CASE, THE ADDITION MADE BY THE A. O. REQUIRES TO BE DELETED, AS IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANT CASE UNDER PROVISIONS OF SECTION 40A(3) OF THE ACT EVEN ON MER ITS , THE IMPUGNED ADDITION REQUIRES TO BE DELETED. 3. AT THE OUTSET, SHRI G. C. PIPARA, LEARNED COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE CIT(S) HAS NOT CONSIDERED AND DE CIDED THE FOLLOWING GROUNDS OF APPEAL: 1. THE ASSESSMENT ORDER U/S 143(3) RWS 147 DATED 3103.2006 PASSED BY THE A.O. IN THE CASE OF THE APPELLANT FOR AY 1998-99 IS BAD IN LAW AND DESERVES TO BE QUASHED AND/OR SUITABLY MODIFIED. . 2. THE LD. A.O. ERRED IN LAW AND ON FACTS IN MAKIN G ADDITION OF RS.33,60,365/- ON ACCOUNT OF UNDISCLOSE D INCOME. 3. THE LD. A. O. OUGHT TO HAVE APPRECIATED THAT TH E APPELLANT HAD NOT EARNED FURTHER INCOME OVER THE RETURNED INCOME AS PRESUMED BY HIM AND NET RECEIPT CALCULATED IS NOT THE INCOME AND THEREFORE NO ADDIT ION WAS REQUIR3ED TO BE MADE. THE A. O. SHOULD HAVE CONSIDERED THAT BANK DEPOSIT IN BANK ACCOUNT ALREAD Y DISCLOSED SO ALSO AMOUNT WITHDRAWN CAN NOT BE SAID TO BE INCOME OF THE APPELLANT. THE A. O. OUGHT TO HAVE ITA NO.906/AHD/2009 MANSI BUILDERS LIMITED 3 CONSIDERED THAT THERE WAS NO MATERIAL TO SUPPORT TH E ADDITION. 4. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE C IT(A) HAS NOT PROPERLY CONSIDERED THE WRITTEN SUBMISSION SUBMITTE D BY THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO STATED TH AT THE CIT(A) HAS PASSED IMPUGNED ORDER WITHOUT AFFORDING ADEQUATE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. HE THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) DATED 13-03-2007 MAY BE SET ASIDE AND THE MA TTER BE RESTORED TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE T HE APPEAL AFRESH ON MERITS AFTER AFFORDING DUE AND REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. ON THE OTHER HAND, SHRI SHELLEY JINDA L, LEARNED DR STRONGLY OPPOSED THE ABOVE CONTENTIONS OF THE LEARN ED COUNSEL FOR THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE CIT(A) HAS NOT CONSIDERED AND DECIDED THE GROUND NOS. 1 TO 3 OF TH E ASSESSEES APPEAL FILED BEFORE HIM. FURTHERMORE, THE CIT(A) HAS ALSO NOT CONSIDERED THE WRITTEN SUBMISSIONS SUBMITTED BY THE ASSESSEE. IT I S RELEVANT TO STATE THAT THE CIT(A) HAS ALSO NOT PROVIDED ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. I N OUR OPINION, THE CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IT IS WELL SET TLED LAW THAT WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CA PACITY, IT IS IMPERATIVE TO GIVE THE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. CONSIDERING THE ENTIRE FACTS O F THE PRESENT CASE WE THINK IT PROPER TO SET ASIDE THE ORDER OF THE CIT(A ) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE A PPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER ALLOWING DUE AND REASONAB LE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.906/AHD/2009 MANSI BUILDERS LIMITED 4 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18-09 -2009 SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (H. L. KARWA) JUDICIAL MEMBER DATE : 18-09-2009 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD