Shri Damjibhai Girdharbhai Mathukia, Surat V. The Income Tax Officer, Ward-3(3)(2), Surat

ITA 975/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1837 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMKIT A SHAH
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance; Set aside
• Section: 147; 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER ITA NOS.975 TO 977/AHD/2017 ASSESSMENT YEARS: 2010-11 TO 2012-13 / VS. ( APPELLANT ) SHRI DAMJIBHAI GIRDHARBHAI, BUILDING NO.13, FLAT NO.3/B, JNTA NAGAR SOCIETY, HIRABAUG, VARACCHA ROAD, SURAT 395 006. ( REVENUE ) THE INCOME TAX OFFICER, WARD-3(3)(2), SURAT. P.A.N: ALKPM 0272 F APPELLANT BY SH R I SAMKIT A.SHAH CA RESPONDENT BY SHRI PRASOON KABRA SR. DR DATE OF HEARING: 2 8 . 0 2 .201 9 DATE OF PRONOUNCEMENT : 28 . 0 2 .201 9 / O R D E R PER KUL BHARAT, J.M : 1. THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF LD.COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT [IN SHORT THE CIT(A)] DATED 31.01.2017 PERTAINING TO ASSESSMENT YEARS 2010-11, 2011-12 AND 2012-13. 2. THE GROUNDS RAISED BY ASSESSEE IN ITA NO.975/AHD/2017 READ AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE PROCEEDINGS U/S 147 OF THE I.T.ACT, 1961 BY ASSESSING OFFICER. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE TREATMENT OF AGRICULTURAL INCOME OF RS.2,05,230/- AS NON AGRICULTURAL INCOME. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.6,36,000/- U/S 68 BEING THE AMOUNT OF DEPOSIT. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.45,000/- ON AMOUNT OF LOW HOUSEHOLD WITHDRAWAL. 5. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,70,000/- ON AMOUNT OF BOGUS LIABILITY. 6. AS THE FATHER OF ASSESSEE MR. GIRDHARBHAI MADHUKIA WAS SERIOUSLY ILL AT HIS NATIVE PLACE AT GONDAL, JUNAGADH, THE ASSESSEE WAS AT HIS NATIVE PLACE AND FOR THIS REASON THE ASSESSEE COULD NOT APPEAR BEFORE CIT(A) AND CIT(A) PASSED THE EX- PARTE ORDER. THE ASSESSEE URGES THAT ALTERNATIVELY THE APPEAL BE SET ASIDE TO FILE OF CIT(A) FOR FRESH HEARING. 3. THE GROUNDS RAISED BY ASSESSEE IN ITA NO.976/AHD/2017 READ AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE PROCEEDINGS U/S 147 OF THE I.T.ACT, 1961 BY ASSESSING OFFICER. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE TREATMENT OF AGRICULTURAL INCOME OF RS.90,203/- AS NON AGRICULTURAL INCOME. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.8,00,000/- U/S 68 BEING THE AMOUNT OF DEPOSIT. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.41,000/- ON AMOUNT OF LOW HOUSEHOLD WITHDRAWAL. 5. AS THE FATHER OF ASSESSEE MR. GIRDHARBHAI MADHUKIA WAS SERIOUSLY ILL AT HIS NATIVE PLACE AT GONDAL, JUNAGADH, THE ASSESSEE WAS AT HIS NATIVE PLACE AND FOR THIS REASON THE ASSESSEE COULD NOT APPEAR BEFORE CIT(A) AND CIT(A) PASSED THE EX- PARTE ORDER. THE ASSESSEE URGES THAT ALTERNATIVELY THE APPEAL BE SET ASIDE TO FILE OF CIT(A) FOR FRESH HEARING. 4. THE GROUNDS RAISED BY ASSESSEE IN ITA NO.977/AHD/2017 READ AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE PROCEEDINGS U/S 147 OF THE I.T.ACT, 1961 BY ASSESSING OFFICER. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE TREATMENT OF AGRICULTURAL INCOME OF RS.85,230/- AS NON AGRICULTURAL INCOME. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.3,07,500/- U/S 68 BEING THE AMOUNT OF DEPOSIT. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.47,000/- ON AMOUNT OF LOW HOUSEHOLD WITHDRAWAL. 6. AS THE FATHER OF ASSESSEE MR. GIRDHARBHAI MADHUKIA WAS SERIOUSLY ILL AT HIS NATIVE PLACE AT GONDAL, JUNAGADH, THE ASSESSEE WAS AT HIS NATIVE PLACE AND FOR THIS REASON THE ASSESSEE COULD NOT APPEAR BEFORE CIT(A) AND CIT(A) PASSED THE EX- PARTE ORDER. THE ASSESSEE URGES THAT ALTERNATIVELY THE APPEAL BE SET ASIDE TO FILE OF CIT(A) FOR FRESH HEARING. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FATHER OF THE ASSESSEE MR.GIRDHARBHAI MADHUKIA WAS SERIOUSLY ILL AT HIS NATIVE PLACE AT GONDAL, JUNAGADH. THUS, THE ASSESSEE HAD TO BE AT HIS NATIVE PLACE FOR FOUR MONTHS I.E. OCTOBER 2016 TO JANUARY 2017. THE ASSESSEES FATHER EXPIRED(DEATH CERTIFICATE ATTACHED). HE FURTHER SUBMITTED THAT DUE TO THESE REASONS HE WAS NOT ABLE TO APPEAR BEFORE THE LD.CIT(A) AT THE TIME OF HEARING. THE LD. CIT (A) PASSED THE EX-PARTE ORDER. THE LD. COUNSEL PRAYED THAT THE APPEAL BE SET-ASIDE TO THE FILE OF LD.CIT(A) FOR FRESH HEARING. THEREFORE, IT WAS REQUESTED THAT MATTER BE RESTORED FOR PROPER EVALUATION OF FACTS BY THE LD.CIT(A), WITH A DIRECTION THAT PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE. 6. THE LD.DR OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE WHO POINTED OUT THAT SUFFICIENT OPPORTUNITY WAS GIVEN, TO THE ASSESSEE WHICH IS EVIDENT FROM THE ORDER OF LD.CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER OF THE AUTHORITIES BEFORE. WE FIND THAT THE LD. CIT (A) IN PARA 2 OBSERVED AS UNDER: 2. IN THIS CASE, NOTICE U/S 250 WAS ISSUED ON 09.11.2016 FIXING THE HEARING ON 21.11.2016. THE SAID NOTICE WAS SENT BY SPEED POST NO. EG687I94184IN ON 10.11.2016, BUT THERE HAS BEEN NO COMPLIANCE FROM THE APPELLANT. THE DETAILS OF HEARING NOTICES ISSUED BY THIS OFFICE ARE AS UNDER:- SR. NO DATE OF ISSUE OF NOTICE U/S 250 SPEED POST NO IF ANY DATE OF HEARING WHETHER ADJOURNMENT SOUGHT FOR WHETHER ADJOURNED REMAKR 1. 09.11.2016 EG687194184IN 21.11.2016 NO NO NON COMPLIANCE FROM AR 2. 23.11.2016 EG68719605IN 24.11.2016 15.12.2016 NO NO NON COMPLIANCE FROM AR 3. FINAL SHOW CAUSE NOTICE DT 19.12.2016 EG 687195746IN 09.01.2017 NO NO THERE HAS BEEN NO COMPLIANCE TO THE FINAL SHOW CAUSE NOTICE FROM THE AR 7. FROM THE AFORESAID, IT IS EVIDENT THAT THE ASSESSEE WAS GIVEN AT LEAST TWO OPPORTUNITIES BY THE LD.CIT(A) ON VARIOUS DATES, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THERE WAS A REASONABLE CAUSE FOR NON-APPEARING BEFORE THE LD. CIT (A). THE LD. CIT (A) OUGHT TO HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE. AFTER CONSIDERING THE FACTS ON THE RECORD AND SUBMISSION OF THE PARTIES WE DEEM IT APPROPRIATE TO RESTORE THE GROUNDS TO THE FILE OF THE CIT (A). WE RESTORE THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 8. IN THE RESULT, THREE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28.02.2019. SD/- (O.P.MEENA) SD/- (KUL BHARAT) ACCOUNTANT MEMBER JUDICIALMEMBER SURAT; DATED : 28/02/2019 / S.GANGADHARA RAO/SR.PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT