Shri Omprakash Dhanwani, Indore V. The ACIT-2(1), Indore

ITSSA 141/IND/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9669 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 03-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRIDULA BAJPAI
• Assessee Lawyers: S S DESHPANDE
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 68

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 141/IND/2013 A.Y.2004-05 OMPRAKASH DHANWANI, INDORE PAN AEZPD 9192 B :: APPELLANT VS ACIT-2(1), INDORE :: RESPONDENT ASSESSEE BY SHRI S.S. DESHPANDE REVENUE BY SMT. MRIDULA BAJPAI DATE OF HEARING 18.12 .2013 DATE OF PRONOUNCEMENT 18.12 .2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER D ATED 13.3.2013 OF THE LEARNED FIRST APPELLATE AUTHORITY ON THE FOLLOWING GROUNDS: 2 1. THE ASSESSMENT IS ILLEGAL AND BAD IN LAW SINCE NO INCRIMINATING MATERIAL HAS BEEN FOUND. NO ADDITION CAN BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL. ALL THE ENTRIES ARE ALREADY RECORDED IN THE BOOKS AND DISCLOSED IN THE RETURN FILED AND HENCE NO ADDITION CAN BE MADE U/S. 153A. 2. THE ORDER OF THE LD. CIT (A) IS ILLEGAL AND BAD IN LAW SINCE HE COULD NOT HAVE DISMISSED THE APPEAL FOR NON PROSECUTION. 2.1 THE COUNSEL OF THE ASSESSEE DID ATTEND ON THE DATE OF THE HEARING WITH A REQUEST TO TAKE UP THE MATTER AFTER MARCH. 3. THE LD. A.O. HAS ERRED IN MAKING THE ADDITION OF RS. 20,00,000/- ON ACCOUNT OF LOANS U/S. 68 AND INTEREST OF RS.1,11,667/- AND THE CIT(A) HAS ERRED IN MAINTAINING THE SAME. 3.1 THE CREDITOR IS THE WIFE OF THE ASSESSEE AND IS ASSESSED TO TAX. SHE HAS CONFIRMED THE CREDIT BALANCE AND HAS ALSO PROVED THE SOURCE OF THE CREDITS WHICH IS ALREADY DISCLOSED IN OUR INCOME TAX RETURNS. THE ADDIT ION OF RS. 21,11,667/- MAY PLEASE BE DELETED. 4. THE LD. A.O. HAS ERRED IN MAKING THE ADDITION OF RS. 1,45,521/- ON ACCOUNT OF SUNDRY CREDITORS AND THE CIT(A) HAS ERRED IN MAINTAINING THE SAME. THE ADDITIONS ARE UNWARRANTED FOR AND HENCE BE DELETED. 5. THE LD. AO HAS ERRED IN MAKING THE DISALLOWANCE OF RS. 60,479/- OUT OF EXPENSES AND THE CIT (A) HAS ERRED IN MAINTAINING THE SAME. THE ADDITIONS ARE UNWARRANTED FOR AND HENCE BE DELETED. 3 2. DURING THE HEARING OF THIS APPEAL, WE HAVE HEARD SHRI S.S. DESHPANDE, LD. COUNSEL FOR THE ASSESSEE AND SMT. MR IDULA BAJPAI, LD. CIT/DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE BY THE LD. CIT(A) AND ADDITIONS HAVE WRONGLY BEEN MADE. ON THE OTHER HAND , LD. CIT/DR DEFENDED THE ADDITIONS BY FURTHER SUBMITTING THAT T HE ASSESSEE DID NOT APPEAR BEFORE LD. CIT(A), THEREFORE, THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON-PROSECUTION. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MU CH DELIBERATION, WE NOTE THAT THE ASSESSMENT WAS FRAMED U/S 153A/143 (3) OF THE I.T. ACT BY THE ASSESSING OFFICER ON 27.12.2011, MA KING VARIOUS ADDITIONS. HOWEVER, BEFORE THE LD. CIT(A), THE ASSE SSEE COULD NOT APPEAR DUE TO REASONABLE CAUSE AND THE APPEAL OF TH E ASSESSEE WAS DISMISSED FOR NON-PROSECUTION. IN VIEW OF THESE FAC TS, WE REMAND THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FUR THER LIBERTY TO 4 FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM . THIS APPEAL OF THE ASSESSEE IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCL USION OF THE HEARING ON 18.12.2013. SD/- SD/- (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 19 .12.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!