Shri Rakeshkumar Hiralal Thakkar, Ahmedabad V. CIT-3, Ahmedabad

ITA 994/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 7972 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 19-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 994/AHD/2018 (ASSESSMENT YEAR: 2013-14) RAJESHKUMAR HIRALAL THAKKAR 1 SHIVALIK VILA BUNGLOW, RAJPATH RANGOLI ROAD, AMBALI BHOPAL, AHMEDABAD-380058 V/S DCIT, CIRCLE 3(3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AARPT3338B APPELLANT BY : SHRI S. N. DIVETIA, AR RESPONDENT BY : SHRI N.K. GOYAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 17 -10-201 9 DATE OF PRONOUNCEMENT : 19 -12-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-3, AHMEDABAD DATED 16.03.2018 PERTAINING TO A.Y. 2013-1 4 AND FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: ITA NO. 994/ AHD/2018 . A.Y. 2013-1 4 2 1. THE LEARNED AO HAS ERRED IN COMPUTING THE TOTAL I NCOME THAT OF RS. 47,64,519/- AS AGAINST THAT OF INCOME RETURNED RS. 35,86,280/- BY DISALLOWING EXPENSES AMOUNTED RS. 11,78,239/- 2. IN LAW AND IN FACT AND CIRCUMSTANCES OF THE APPELLA NT'S CASE, THE LEARNED AO HAS GROSSLY ERRED IN CHARGING INTEREST UNDER SECTION 234A/B/C O F THE INCOME TAX ACT, 1961. 3. THE LEARNED AO IS NOT JUSTIFIED IN INITIATING PENAL TY PROCEEDINGS UNDER SECTION 271(L)(C) OF THE INCOME TAX ACT, 1961 WITH RESPECT TO ABOVE ADDI TION. 4. THAT THE APPELLANT PRAY TO STAY DEMAND OF RS. 5,01, 700/- MADE BY LEARNED AO FOR THE YEAR UNDER CONSIDERATION. 5. THE ASSESSEE HAS PREFERRED APPEAL TO THE CIT (A) AG AINST THE ORDER OF ITO. THE LEARNED CIT (A) HAS JUSTIFIED THE ASSESSING OFFICER AND DIS MISSED THE APPEAL ON ALL THE GROUNDS. THE ASSESSEE HAS PREFERRED FURTHER APPEAL TO THE ITAT F OR THE ABOVE MENTIONED GROUNDS. 2. FACTS OF THE CASE ARE THAT THE ASSESSEE CARRIES ON THE BUSINESS OF REAL ESTATE AND HOTEL BUSINESS. 3. BRIEF FACTS OF THE CASE ARE THAT APPELLANT IS AN IN DIVIDUAL DERIVING INCOME FROM REAL ESTATE AND GUEST HOUSE BUSINESS. DURING THE YEAR APPE LLANT HAS SOLD INVENTORY OF PROPERTY AT SANAND (SER. NO. 440/4) FOR CONSIDERATIO N OF RS. 24,26,000/- AND AGAINST THE TOTAL COST OF RS. 19,99,689/- ON THE SAME. HE H AS ALSO FILED THE RETURN WITH DISCLOSING PROFIT OF RS.4,26,311/- ON THE SAID PLOT AS EN 28/09/2013. OUT OF THE ABOVE EXPENSES RS.11,78,239/- WAS DISALLOWED BY THE LEARNED AO VIDE ORDER DATED 22/03/2016 STATING THAT THE TRANSACTION IS COLLUSIV E OR FRAUDULENT. 4. OUT OF THE ABOVE DISALLOWANCE THE PAYMENT OF RS.4,4 1,651/- WAS MADE TO M/S. SHREEJI TRADERS AND RS.7,36,588/- TO M/S. VISHWA TR ADING. BOTH THE PARTIES HAS SUPPLIED THE CEMENT BAGS, SAND AND BRICKS RESPECTIVE LY TO CARRY THE LEVELING AND COMPOUND WALL RELATED WORK ON THE SAID PLOT. THE PAY MENT WAS MADE BY ACCOUNT PAYEE CHEQUE. THE COPIES OF BILLS, DELIVERY CHALLAN S, INWARD REGISTER MAINTAINED BY SITE SUPERVISOR AND BANK STATEMENT DULY REFLECTING THE PA YMENT ENTRIES. BUT LD. A.O. WAS NOT SATISFIED WITH THE CONTENTION OF THE ASSESSEE A ND MADE DISALLOWANCE OF RS. 11,78,239/-. ITA NO. 994/ AHD/2018 . A.Y. 2013-1 4 3 5. THEREAFTER ASSESSEE PREFERRED FIRST STATUTORY APPEA L BEFORE THE LD. CIT(A) AND MATTER WAS FIXED FOUR TIMES BEFORE THE LD. CIT(A) BUT NONE APPEARED AND NOTICES WERE RETURNED UNSERVED. SAME RESULTED INTO EX-PARTE ORDE R PASSED BY THE LD CIT(A). 6. NOW ASSESSEE HAS COME BEFORE US STATED THAT HE HAS NO T RECEIVED ANY NOTICE AND FROM THE IMPUGNED ORDER OF THE LD. CIT(A). WE CAN SEE THA T NOTICES WERE RETURNED UNSERVED TO THE OFFICE OF THE LD. CIT(A). 7. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE MATTER AFRESH AS PER PROVISIONS OF LAW AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 19 - 12- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 19/12/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD