Vimal Vadilal Morakhiya HUF, Surat V. Dy. Commissioner of Income Tax, Circle 2(3), Surat

ITA 910/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 3512 (ITAT-SURAT)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-02-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V. VINOD KUMARLD
• Assessee Lawyers: CHAITALI SHAH
• Keywords: Set aside; Opportunity of being heard; Unexplained cash credit; Principle of natural justice
• Section: 147; 148; 143(3); 68

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. 910/Srt/2023 (Assessment Year 2010-11) (Physical hearing) Vimal Vadilal Morakhiya HUF, 207, Satyanarayan Building, Kansara Sheri, Mahidharpura, Surat (Gujarat)-395003. PAN No. AACHV 9195 F Vs. D.C.I.T., Circle 2(3), Surat. Appellant/ Assessee Respondent/ Revenue Assessee represented by Ms. Chaitali Shah, C.A. Department represented by Shri Vinod Kumar, Sr.DR Appeal instituted on 30/12/2023 Date of hearing 29/02/2024 Date of pronouncement 29/02/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of the National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 15/11/2023 for the Assessment Year (AY) 2010-11. The assessee has raised following grounds of appeal: “1. On the facts and in circumstances of the case as well as law on the subject, the learned CIT(A) has erred in passing ex-parte order without giving reasonable and sufficient opportunity of being heard. 2. On the facts and circumstances of the case as well as law on the subject, the learned CIT(A) has erred in dismissing the appeal without passing speaking order. 3. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in re-opening assessment u/s 147 by issuing notice u/s 148 of the I.T. Act, 1961. ITA No. 910/Srt/2023 Vimal Vadilal Morakhiya HUF Vs DCIT 2 4. Even otherwise, the reassessment order passed u/s. 147 is invalid as assessee was not supplied with the statement recorded of broker and the investigation report on the basis of which notice u/s. 148 was issued and reassessment was framed. 5. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in making addition of Rs. 1,38,52,790/- on account of alleged unexplained cash credit u/s. 68 of the I.T. Act. 6. It is therefore prayed that assessment framed u/s 143(3) r.w.s. 147 of the Act may kindly be quashed and/or addition made by assessing officer may please be deleted or the matter may be set aside to the file of the CIT(A) to decide the matter afresh. 7. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits the ld. CIT(A) has not given fair and reasonable opportunity of hearing and passed the order in an ex parte and non-speaking order. The substantial right of the assessee are involved in the present appeal. The assessee has good case on merit and is likely to succeed if one more opportunity to contest the case is allowed. The ld. AR of the assessee submits that he undertakes on behalf of assessee to be more vigilant in future in making compliance. Though, the assessee has made certain compliance in response to various notices. Still the ld. CIT(A) has not considered all those submissions while passing the order by simply taking view that the assessee has not filed any written submission. 3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue supported the orders of lower authorities. The ld. Sr. DR for the revenue submits that the assessee has given more than ITA No. 910/Srt/2023 Vimal Vadilal Morakhiya HUF Vs DCIT 3 sufficient opportunities to contest the appeal during the appellate stage, it is the assessee who has not made any proper compliance as recorded in para 3 of order of ld. CIT(A). The assessee has not deserve any further leniency. In case, this Bench is of view that the assessee deserve any further opportunity of hearing, the assessee is allowed such opportunity only on payment of exemplary cost. 4. We have considered the submissions of both the parties and perused the record carefully. We find that the Assessing Officer made addition on account of unexplained cash credit under Section 68 of the Income Tax Act, 1961 (in short, the Act) of Rs. 1,38,52,788/-. The ld. CIT(A) confirmed the action of Assessing Officer by holding that the assessee has not made compliance. Perusal of record shows that the assessee made certain compliance in response to notice issued by the ld. CIT(A), still such compliance was not considered by the ld. CIT(A) while dismissed the appeal only on the ground that the assessee failed to file written submissions. We find that the order of ld. CIT(A) is not as per the mandate of Section 250(6) of the Act. Section 250(6) of the Act mandate that the order of CIT(A) must be in writing containing the point for determination, decision thereon and reasons for such decision. Thus, considering the facts and circumstances of the case, the ld. CIT(A) has passed the ex parte order, therefore, keeping in view the principle of natural justice, we deem it appropriate to allow one more opportunity to the assessee to contest the ITA No. 910/Srt/2023 Vimal Vadilal Morakhiya HUF Vs DCIT 4 grounds of appeal raised in the appeal before the ld. CIT(A). Therefore, we restore the matter back to the file of ld. CIT(A) to decide all the issue afresh in accordance with law. Needless to direct that before passing the order, the ld. CIT(A) shall grant opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay and seek adjournment without any valid reason and to furnish all the details and his submissions and evidences on various grounds of appeal raised by him, as soon as possible, if so desired without any further delay. In the result, the grounds of appeal raised by the assessee are allowed for statistical purposes. 5. In the result, this appeal of assessee is allowed for statistical purposes only. Order announced in open court on 29 th February, 2024. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 29/02/2024 *Ranjan Copy to: 1. Assessee 2. Revenue 3. CIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat