Sumesh Kumar Vanawat, Udaipur V. ACIT, Central Circle-1, Udaipur

ITA 95/JODH/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6601 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SINGI
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 153A; 234B; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NOS. 94 & 95/JODH/2019 (ASSESSMENT YEARS -2007-08 & 2012-13) SHRI SUMESH KUMAR VANAWAT, 166, VAKIL COLONY, HIRAN MAGRI, UDAIPUR (RAJ.) VS THE ACIT, CENTRAL CIRCLE-1, UDAIPUR (APPELLANT) (RESPONDENT) PAN: AAUPV4159K REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE (WRITTEN SUBMISSIONS OF SH SUDHIR MEHTA, CA) DATE OF HEARING 02.05.2019 DATE OF PRONOUNCEMENT 02.05.2019 O R D E R PER N.K. SAINI, V.P. : THESE TWO APPEALS BY THE ASSESSEES ARE DIRECTED AGA INST THE SEPARATE ORDERS EACH DATED 26.12.2018 OF THE CIT(A)-2, UDAIP UR FOR THE A.YS. 2007-08 & 2012-13. 2 2. SINCE THE ISSUES INVOLVED ARE COMMON AND THE APP EALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, HOWEVER, WRITTEN SUBMISSIONS HAVE BEEN FU RNISHED WHICH WE HAVE CONSIDERED WHILE DECIDING THESE APPEALS. 4. AT THE FIRST INSTANCE, WE WILL DEAL WITH THE APP EAL IN ITA NO. 94/JODH/2019. 5. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS-2), UDAIPUR HAS GROSSLY ERRED IN FACTS AND IN LAW IN CO MPLETING THE APPELLATE PROCEEDINGS EXPARTE WITHOUT PROVIDING THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE TO EXPLAIN HIS CASE, THEREFORE THE ACTION OF THE LD. C IT (APPEALS-2) IS ERRONEOUS, UNJUSTIFIED & BAD IN LAW AS PER THE P ROVISIONS OF ACT AND THE ORDER SO PASSED IS BAD IN LAW IS LIABLE TO BE QUASHED. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS-2), UDAIPUR HAS GROSSLY ERRED IN FACTS AND IN LAW IN CO NFIRMING THE ASSESSMENT PROCEEDINGS COMPLETED U/S 143 R.W.S. 153 A OF THE IT ACT, 1961, WHEREAS WHILE COMPLETING THE ASSESSME NT, THE AO HAS NOT PROVIDED THE REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE TO EXPLAIN HIS CASE, THEREFORE THE ACT ION OF THE LD. CIT (APPEALS-2) IS ERRONEOUS, UNJUSTIFIED & BAD IN LAW AS PER THE PROVISIONS OF ACT AND THE ORDER SO PASSED IS BA D IN LAW IS LIABLE TO BE QUASHED. 3 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS -2), UDAIPUR HAS GROSSLY ERRED IN LAW AS WELL AS ON FACT OF THE CASE IN CONFIRMING THE ADDITION MADE BY THE LD. AO BY EN HANCING THE RETURNED INCOME BY RS. 240000/- ON ACCOUNT OF U NDISCLOSED AND UNEXPLAINED INVESTMENT U/S 69 WITHOUT ANY BASI S AND FACT & FINDINGS, THEREFORE THE ACTION OF THE LD. COMMISS IONER OF INCOME TAX (APPEALS-2), UDAIPUR IS ERRONEOUS & BAD IN LAW AS PER THE PROVISIONS OF ACT AND IS LIABLE TO BE DELET ED. 4. THAT UNDER THE FACT & CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS-2) HAS ERRED IN COMPUTING/CHARGING INTEREST U/S 234B OF THE IT ACT, 1961. 5. THAT THE APPELLANT RESERVES HIS RIGHTS TO ADD, T O ALTER OR TO MODIFY ANY GROUNDS OF THE APPEAL ON OR BEFORE HE ARING OF THE SAME. 6. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O.1 RELATES TO THE EX- PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT AFFORD ING REASONABLE OPPORTUNITY OF BEING HEARD. 7. THE FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE PROCEEDINGS WERE CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PR EMISES OF THE ASSESSEE AND SHRI NAHA LAL AHARI, THEIR FAMILY AND BUSINESS CONC ERNS / COMPANIES ON 5.12.2012. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICES U/S 153A OF THE INCOME TAX ACT, 1961 [IN SHORT' THE ACT'] ON 24.9.2 013. IN RESPONSE, THE ASSESSEE FILED THE RETURN OF INCOME OF RS. 26,52,44 0/-. HOWEVER, THE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER AT A N INCOME OF RS. 28,92,440/- BY MAKING THE VARIOUS ADDITIONS. 4 8. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE ASSESSING O FFICER BY PASSING AN EX- PARTE ORDER. THE LD. CIT(A) MENTIONED IN PARA-2 OF THE IMPUGNED ORDER THAT THE NOTICES FOR HEARING WERE ISSUED ON VARIOUS DATE S BUT NONE ATTENDED ON BEHALF OF THE ASSESSEE. 9. NOW THE ASSESSEE IS IN APPEAL. 10. THE LD. COUNSEL FOR THE ASSESSEE IN HIS WRITTEN SUBMISSIONS SUBMITTED AS UNDER:- WITH REFERENCE TO THE ABOVE SUBJECT, IN THE ASSESS EE'S CASE, DUE TO NON-RECEIPT OF NOTICES ON TIMELY MANNE R AND NON APPEARANCE BEFORE THE LD. CIT (APPEALS-2), UDAIPUR DUE TO SOME UNAVOIDABLE CIRCUMSTANCES, THE APPELLATE ORDER HAS BEEN PASSED EXPARTE IN THE ASSESSEE'S CASE. IN THIS CONNECTION, YOUR HONOUR IS KINDLY REQUESTED TO SET ASIDE THE MATTER BEFORE THE LD. CI T (APPEALS-2), UDAIPUR FOR HER FRESH JUDGMENT. WE AS SURE YOU THAT, THE ASSESSEE WILL APPEAR & SUBMIT THE NECESSARY REPLY ALONGWITH SUPPORTING DOCUMENTS BEFO RE THE LD. CIT (APPEALS-2), UDAIPUR OR OTHERWISE, KIND LY ADJOURN THE HEARING AND GIVE ANY OTHER DATE. 11. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPOR TED THE ORDERS OF THE AUTHORITIES BELOW. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE FROM THE NO TING OF THE LD. CIT(A) IN PARA 2 OF THE IMPUGNED ORDER IT IS NOTICED THAT HE HAD MENTIONED THAT ON VARIOUS DATES THE NOTICES WERE ISSUED, HOWEVER, NO THING IS BROUGHT ON RECORD 5 TO SUBSTANTIATE THAT AS TO WHETHER THE NOTICES ISSU ED WERE SERVED UPON THE ASSESSEE OR NOT. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASES BACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 13. IN ITA NO. 95/JODH/2019 , THE FACTS ARE SIMILAR AS WERE INVOLVED IN ITA NO. 94/JODH/2019 (SUPRA), THEREFORE, OUR FINDIN GS GIVEN IN FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 02.05.2019) SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 02. 05.2019 . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , # / DR, ITAT, JODHPUR 6. & / GUARD FILE 6 / BY ORDER / ASSISTANT REGISTRAR