Hansaben Maheshkumar Thakker, Ahmedabad V. DCIT, Central Circle-1(1), Ahmedabad

ITSSA 221/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9265 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 17-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Set aside
• Section: 143(3)

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER () ./ I.T(SS).A. NO. 221/AHD/2018 ( ASSESSMENT YEAR : 2011-12) HANSABEN MAHESHKUMAR THAKKAR 28/325, SHIVSHAKTI APARTMENT, OPP: AKBARNAGAR, NAVA VADAJ, AHMEDABAD / VS. D.C.I.T. CENTRAL CIR.1(1), AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD ./ ./ PAN/GIR NO. : AEUPT3253N ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI ALOK SINGH, CIT.D.R. !' DATE OF HEARING 04/09/2019 #$%& !' / DATE OF PRONOUNCEMENT 04/10/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-11, AHMEDABAD (CIT(A) IN SHORT), DATED 09.04.2018 ARIS ING IN THE ASSESSMENT ORDER DATED 26.02.2015 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 143(3) R.W.S. 153A(1)(B) OF THE INCOME TAX ACT, 196 1 (THE ACT) CONCERNING AY 2011-12. IT(SS)A NO. 221/AHD/17 [HANSABEN M. THAKKAR VS. DCIT] A.Y. 2011-12 - 2 - 2. THE SUBSTANTIVE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS UNDER:- 1. BOTH THE LD. A.O. HAS ERRED IN MAKING THE ADDIT ION OF RS.1,00,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT U/S.69B F OR A.Y. 2011-12 AND LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE AO WITHOUT AFFORDING ADEQUATE OPPORTUNITY TO THE APPELLANT. 2. BOTH THE LD. AO AND THE LD. CIT(A) HAS ERRED IN KEEPING THE ADDITION OF INCOME OF RS.1,00,000/- AS UNEXPLAINED INVESTMENT. 3. WHEN THE MATTER WAS CALLED FOR HEARING, NONE APP EARED ON BEHALF OF THE ASSESSEE. ACCORDINGLY, THE MATTER WAS PROCEEDE D EX PARTE. 4. ON PERUSAL OF THE ORDER OF THE CIT(A), WE STRAIG HTAWAY NOTICE THAT THE CIT(A) HAS DISMISSED THE APPEAL BEFORE IT FOR W ANT OF PROSECUTION AND NONATTENDANCE. IN THIS REGARD, WE NOTICE FROM THE CASE RECORDS THAT ASSESSEE HAD FILED APPLICATION FOR ADJOURNMENT OF H EARING BEFORE THE CIT(A) IN PURSUANCE OF NOTICE ISSUED UNDER S.250 OF THE ACT. IT IS FURTHER SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE ASSESS EE ON THE APPOINTED DATE WAS TOLD THAT FRESH NOTICE WILL BE ISSUED BUT HOWE VER, THE APPEAL WAS DISPOSED WITHOUT GIVING ANY OPPORTUNITY TO DEFEND I TS CASE. 5. WE STRAIGHTWAY REFER TO SECTION 250(6) OF THE AC T WHICH ENJOINS THAT THE CIT(A) SHALL STATE THE POINTS FOR DETERMINATION BEFORE IT AND THE DECISION SHALL BE RENDERED ON SUCH POINTS ALONGWITH REASONS FOR THE DECISION. THUS, IT IS INCUMBENT UPON THE CIT(A) TO DEAL WITH THE GROUNDS ON MERITS EVEN IN EX PARTE ORDER. IN VIEW OF SECTION 250(6) OF THE ACT, THE CIT(A) HAS NO POWER TO DISMISS AN APPEAL ON ACCOUNT OF NON-PROSECUTION. THIS VIEW IS ALSO TAKEN BY THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT VS. PREMKUMAR ARJUNDAS LUTHRA HUF (2017) 297 CTR 61 4 (BOM.) . A BARE GLACE OF THE ORDER OF THE CIT(A) SHOWS THAT CIT(A) HAS NOT ADDRESSED ITSELF ON THE VARIOUS POINTS PLACED FOR ITS DETERMINATION AT ALL AND DISMISSED THE APPEAL OF ASSESSEE FOR DEFAULT IN NONAPPEARANCE. N EEDLESS TO SAY, THE CIT(A) PLAYS ROLE OF BOTH ADJUDICATING AUTHORITY AS WELL AS APPELLATE IT(SS)A NO. 221/AHD/17 [HANSABEN M. THAKKAR VS. DCIT] A.Y. 2011-12 - 3 - AUTHORITY. THUS, THE CIT(A) COULD NOT HAVE SHUNNED THE APPEAL FOR NON- COMPLIANCE WITHOUT ADDRESSING THE ISSUE ON MERITS. 6. IN THE TOTALITY OF THE CIRCUMSTANCES, WE CONSIDE R IT JUST AND EXPEDIENT TO RESTORE THE MATTER BACK TO THE CIT(A) IN THE LAR GER INTEREST OF JUSTICE WITH A VIEW TO ENABLE THE ASSESSEE TO AVAIL PROPER OPPORTUNITY FOR DISPOSAL OF APPEAL BY THE CIT(A) ON VARIOUS POINTS. NEEDLES S TO SAY, THE ASSESSEE SHALL EXTEND FULL CO-OPERATION TO THE CIT(A) WITHOU T ANY DEMUR, FAILING WHICH, THE CIT(A) SHALL AT LIBERTY TO CONCLUDE THE APPELLATE PROCEEDINGS IN ACCORDANCE WITH LAW. HENCE, THE ORDER OF THE CIT(A ) APPEALED AGAINST, IS SET ASIDE AND ALL THE ISSUES RAISED IN THE IMPUGNED APPEAL ARE RESTORED BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASS ESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 04/10/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- ). / REVENUE 2. / ASSESSEE +. ,-.! /! / CONCERNED CIT 4. /!- / CIT (A) 2. 345 6!6-.7 ' -.&7 89, / DR, ITAT, AHMEDABAD :. 5;< = / GUARD FILE. BY ORDER / 7 /8 ' -.&7 89, THIS ORDER PRONOUNCED IN OPEN COURT ON 04/10/201 9