Shri Vimalkumar Parbhubhai Tandel, Valsad V. ITO, Ward-4, Valsad

ITA 91/SRT/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2755 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Unexplained cash credit
• Section: 143(3); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.91/SRT/2018 (AY 2011-12) (H EARING IN VIRTUAL COURT) SHRI VIMALKUMAR PARBHUBHAI TANDEL, GANGAJI STREET, PARDHI FALIYA, KOSAMBA, VALSAD, GUJARAT 396001. E-MAIL: [e-mail] PAN: AHKPT 9984 B VS. THE INCOME TAX OFFICER, WARD-4, VALSAD. APPLICANT RESPONDENT ASSESSEE BY SHRI RAJESH UPADHYAY AR REVENUE BY MS. ANUPAMA SINGLA SR.DR DATE OF HEARING 12.10.2021 DATE OF PRONOUNCEMENT 12.10.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS), VALSAD, UNDER SECTION 143(3) R.W.S 147 OF THE I.T.ACT, 1961 DATED 05.12.2017 FOR THE ASSESSMENT YEAR (AY) 2011-12. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL: [1]. LR. CIT(A), VALSAD HAS ERRED IN LAW AND ON FACTS TO DISMISS APPELLANTS APPEAL WITHOUT GOING INTO THE MERITS OF HIS CASE AND WITHOUT DECIDING ANY OF THE GROUNDS RAISED BY THE APPELLANT IN HIS APPEAL BY PRESUMING THAT THE APPELLANT IS NOT INTERESTED IN PERUSING HIS APPEAL. [2] LR. CIT[A],VALSAD HAS ERRED IN LAW AND ON FACTS TO DISMISS APPELLANTS GROUND FOR INVOCATION OF PROVISIONS OF SECTION 147 OF THE ACT INVOKED BY THE A.O. ONLY ON ACCOUNT OF CASH DEPOSIT OF RS.26.00 LACS IN HIS BANK ACCOUNT WITH B.O.B. IN F.Y.2010- 11.HE HAS NOT ADJUDICATED THE SAID GROUND AND THERE BY DISMISSED THE SAME. ITA NO.91/SRT/2018, (AY 2011-12) SHRI VIMALKUMAR PARBHUBHAI TANDEL, VALSAD 2 [3] LR. CIT[A],VALSAD HAS ERRED IN LAW AND ON FACTS TO CONFIRM ADDITION OF RS.26.00 LACS MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN PROVIDING COACHING AND CONSULTANCY CLASSES. NO RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE SUBJECT ASSESSMENT YEAR (AY). THE ASSESSING OFFICER (AO) RECEIVED INFORMATION THAT THE ASSESSEE HAS MADE CASH DEPOSIT IN HIS BANK ACCOUNT OF RS. 26 LAKHS. ON THE BASIS OF SUCH INFORMATION, THE AO AFTER RECORDING REASONS OF REOPENING ISSUED NOTICE UNDER SECTION 148 ON 27.03.2015. IN RESPONSE TO SAID NOTICE THE ASSESSEE FILED HIS RETURN OF INCOME OF 27.11.2015 AND ALSO FURNISHED PROFIT AND LOSS ACCOUNT. THE AO AFTER GRANTING HEARING AND CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE ADDITION OF RS. 2,60,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITED IN HIS BANK ACCOUNT AND THE SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL BEFORE THE LD.CIT(A), THE ACTION OF AO WAS CONFIRMED BY THE LD.CIT(A). THE LD.CIT(A) CONFIRMED THE ADDITION IN THE EX-PARTE ORDER DATED 05.12.2017, THUS, FURTHER AGGRIEVED, THE ASSESSE FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 3. WE HAVE HEARD SUBMISSIONS OF LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND LD. SENIOR DEPARTMENTAL REPRESENTATIVE (SR. DR) FOR THE REVENUE. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) DISMISSED THE APPEAL OF ASSESSEE IN EX-PARTE PROCEEDINGS WITHOUT GOING THROUGH THE MERITS OF THE CASE. THE LD.AR OF THE ASSESSEE FILED ADJOURNMENT APPLICATION ON 07.03.2017 TO THE HEARING FIXED ON 15.03.2017. THE AR OF THE ASSESSEE ITA NO.91/SRT/2018, (AY 2011-12) SHRI VIMALKUMAR PARBHUBHAI TANDEL, VALSAD 3 COULD NOT ATTEND THE HEARING AS THE ASSESSEE IS EMPLOYED WITH MARINE COMPANY AND HAD TO STAY ON HIGH SEA DUE TO HIS EMPLOYMENT FOR SEVERAL MONTHS AND SOME TIME FOR MORE THAN SIX MONTHS. DURING THE RELEVANT PERIOD THAT IS FROM MONTH OF APRIL 2017 TO DECEMBER 2017, THE ASSESSEE WAS NOT AVAILABLE HIS AR COULD NOT MADE COMPLIANCE. 4. THE LD. AR FURTHER SUBMITS THAT THE ASSESSEE HAS GOOD CASE ON MERIT AND IS LIKELY TO SUCCEED IF ONE MORE OPPORTUNITY OF HEARING IS GRANTED TO HIM TO EXPLAIN THE FACTS BEFORE LD.CIT(A). THE LD.AR FOR THE ASSESSEE PRAYED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LD.CIT(A). THE LD.AR FURTHER SUBMITS THAT THE LD.CIT(A) PASSED THE EX-PARTE ORDER WITHOUT DISCUSSING THE MERITS OF THE CASE. THE LD.AR FOR THE ASSESSEE AGAIN RETREATED THAT NO OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE. THE ASSESSEE HAS GOOD CASE ON MERIT AND IS LIKELY TO SUCCEED IF HE IS GIVEN OPPORTUNITY. THE LD.AR FOR THE ASSESSEE UNDERTOOK TO BE VIGILANT IN ATTENDING THE HEARING BEFORE FIRST APPELLATE AUTHORITY. 5. ON THE OTHER HAND, THE SR.DR FOR THE REVENUE SUBMITS THAT THE ASSESSEE WAS GIVEN AMPLE OPPORTUNITY AS RECORDED IN PAGE 6 OF PARA 3.3 OF THE ORDER PASSED BY THE LD.CIT(A). THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE ISSUED BY THE LD.CIT(A). THE LD.CIT(A) LEFT WITH NO OPTION, EXCEPT TO PROCEED TO DECIDE THE ISSUE AND IN ABSENCE OF ANY EVIDENCE OR EXPLANATION AFFIRM THE ACTION OF AO. IN ALTERNATIVE SUBMISSION, THE LD.SR.DR FOR THE REVENUE SUBMITS THAT IN CASE THE HONBLE TRIBUNAL IS DEEM APPROPRIATE, THE ITA NO.91/SRT/2018, (AY 2011-12) SHRI VIMALKUMAR PARBHUBHAI TANDEL, VALSAD 4 ASSESSEE BE DIRECTED TO BE VIGILANT AND NOT TO DEFAULT IN ATTENDING THE PROCEEDINGS AND TO WASTE THE TIME OF PUBLIC AUTHORITIES/LD.CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. WE FIND THAT THE AO WHILE PASSING THE ASSESSMENT ORDER MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT ON THE BASIS OF DEPOSIT IN HIS BANK ACCOUNT. THE LD.CIT(A) CONFIRMED THE ACTION OF AO BY TAKING VIEW THAT THERE IS NON-COMPLIANCE ON THE PART OF THE ASSESSEE. BEFORE, US THE LD. AR FOR THE ASSESSEE UNDERTOOK TO BE VIGILANT AND TO APPEAL BEFORE THE LD. CIT(A). WE, INSTEAD OF GOING INTO CONTROVERSY, WHETHER THE ASSESSEE DEFAULTED IN ATTENDING THE PROCEEDINGS BEFORE THE LD.CIT(A). WE FIND THAT THE ORDER OF THE LD. CIT(A) IS NOT IN ACCORDANCE WITH MANDATE OF SECTION 250(6) OF THE INCOME TAX 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. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE ALL THE GROUNDS OF APPEAL ON MERIT IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AS AND WHEN THE DATE OF HEARING IS FIXED AND TO PROVIDE ALL NECESSARY EVIDENCE AND INFORMATION WITHOUT ANY FURTHER DELAY AND NOT TO SEEK THE ADJOURNMENT WITHOUT ANY VALID REASONS. ACCORDINGLY THE GROUND OF APPEAL BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.91/SRT/2018, (AY 2011-12) SHRI VIMALKUMAR PARBHUBHAI TANDEL, VALSAD 5 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER ANNOUNCED ON 12 TH OCTOBER, 2021 AT THE TIME OF HEARING IN VIRTUAL COURT HEARING. SD/- SD/- (DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 12/10/2021 / SGR* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER / / TRUE COPY / / SR. PVT. SECRETARY, ITAT, SURAT