Shri Vikas A.Shah, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(2), Ahmedabad

ITSSA 793/AHD/2010

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0557 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-02-2015
• Assessment Year: misc
• Appeal Filed On: 18-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Assessee Lawyers: G C PIPARA
• Keywords: Document seized; Principle of natural justice; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD , LH LHLH LH BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. IT(SS)A NO. 793/AHD/2010 (BLOCK PERIOD: 01/04/1995 TO 31/12/2001) VIKASH A. SHAH 210, ANAL FLATS, NR. VIJAY CHAR RASTA, NAVRANGPURA, AHMEDABAD APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(2), AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD RESPONDENT PAN: APWPS4465G /BY APPELLANT : SHRI G. C. PIPARA, A.R. /BY RESPONDENT : SHRI T. P. KRISHNAKUMAR, CITD.R. !' /DATE OF HEARING :02.02.2015 #$% !' /DATE OF PRONOUNCEMENT :06.02.2015 IT(SS)A NO. 793/AHD/2010 FOR BLOCK PERIOD 1/4/95 TO 31/12/01(VIKASH A. SHAH VS. DCIT) PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, AHMEDABAD, DATED 17.09.2010 FOR THE BLOCK PERIOD: 01.04.1995 TO 31.1 2.2001ON THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ADDITION OF RS.1,15,29,000/- MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED INCOME BASED ON THE SEIZED MATERIAL FOUND FROM SHRI ARVIND SHAH. I N VIEW OF FACTS AND SUBMISSIONS FILED AS WELL AS LEGA L POSITION, THE IMPUGNED ADDITION OF RS.1,15,29,000/- OUGHT TO HAVE BEEN DELETED. 2. THE LEARNED CIT(A) FURTHER ERRED IN OBSERVING TH AT ON THE APPOINTED DATE OF HEARING I.E. 01/9/2010, NONE ATTENDED THE HEARING. IT IS HUMBLY SUBMITTED THAT ON THE SAID DATE, THE APPELLANT HAD FILED A REQUEST FO R ADJOURNMENT WHICH WAS DULY ACKNOWLEDGED BY THE OFFICE OF THE LEARNED CIT(A). HENCE, THE IMPUGNED APPELLATE ORDER HAVING BEEN PASSED WITHOUT GRANTING ADEQUATE OPPORTUNITY SUFFERS FROM VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY AND ACCORD INGLY REQUIRES TO BE QUASHED AND/OR SET-ASIDE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION AFTER CONSIDERATION O F ALL THE FACTS AND ARGUMENTS IN RESPECT OF THE ADDITIONS MADE BY THE A.O. IN THE ASSESSMENT ORDER. 2. BRIEF FACTS OF THE CASE ARE THAT A NOTICE U/S. 1 58BC OF THE INCOME TAX ACT WAS ISSUED ON 05.05.2005 AND THE SAM E WAS SERVED ON ASSESSEE ON 01.06.2005. THIS NOTICE WAS ISSUED ON THE BASIS OF SATISFACTION RECORDED AND INTIMATION R ECEIVED BY ASSESSING OFFICER OF ASSESSEE FROM ASSESSING OFFICE R OF SHRI JIVRAJ V. DESAI. IN RESPONSE TO NOTICE U/S.158BC, ASSESSEE HAS IT(SS)A NO. 793/AHD/2010 FOR BLOCK PERIOD 1/4/95 TO 31/12/01(VIKASH A. SHAH VS. DCIT) PAGE 3 NEITHER ATTENDED THE APPEAL HEARING AND ASSESSING O FFICER PASSED ASSESSMENT ORDER FOR BLOCK PERIOD ON 28.06.2 007. IT WAS TOTAL UNDISCLOSED INCOME OF BLOCK PERIOD AT RS.1,15,29,000/-. 2.1 WE FIND FROM FIRST APPELLATE AUTHORITY THAT MAT TER WAS FIXED FOR HEARING ON 09.08.2010. ON SAID DATE COUN SEL FOR ASSESSEE FILED A LETTER DATED 09.08.2010, WHICH REA DS AS UNDER: 'I REFER TO THE NOTICE OF HEARING OF APPEAL NO.CIT( A)- I/CC/1(2)/41/2009-2010 FOR BLOCK PERIOD AGAINST ORD ER U/S.L58BD R.W.S.158BC R.W.S.143(3) OF THE I.T. ACT. IN THIS CONNECTION, I WOULD LIKE TO INFORM TO YOUR HONOUR T HAT THE COPY OF DOCUMENTS SEIZED BY THE LEARNED ASSESSING O FFICER HAS NOT BEEN FURNISHED TO ME. UNDER THE CIRCUMSTANC ES, I AM NOT ABLE TO PREPARE WRITTEN SUBMISSION WHICH FAC T WAS DISCLOSED EARLIER ALSO. TILL THE DATE, I HAVE NOT R ECEIVED THE COPY OF SEIZED DOCUMENTS. IN VIEW OF THE ABOVE FACT S AND CIRCUMSTANCES, I REQUEST YOUR HONOUR TO PLEASE ADJO URN THE HEARING FIXED ON AUGUST 9, 2010 SIGN E DIE TILL THE RECEIPT OF DOCUMENTS BY ME. I AM SORRY FOR THE INCONVENIENCE CAUSED DUE TO THIS REQUEST.' THEREAFTER, HEARING WAS ADJOURNED TO 01.09.2010. A CCORDING TO ASSESSEE, ADJOURNMENT PETITION WAS MOVED ON BEHALF OF ASSESSEE ON 1 ST SEPETEMEBER, 2010, WHICH READS AS UNDER: TO THE COMMISSIONER OF INCOME TAX (APPEALS) -1, AHMEDABAD SEPTEMBER 1, 2010 RESPECTED SIR, IT(SS)A NO. 793/AHD/2010 FOR BLOCK PERIOD 1/4/95 TO 31/12/01(VIKASH A. SHAH VS. DCIT) PAGE 4 SUB: ADJOURNMENT OF HEARING IN THE CASE OF VIKAS A. SHAH - FIXED FOR HEARING ON 09/08/2010 I REFER TO THE HEARING OF APPEAL NO.CIT(A)- I/CC/L(2)/41/2009-2010 FOR BLOCK PERIOD AGAINST ORD ER U/S 158BD R W S 158BC R W S 143 OF THE INCOME TAX ACT F IXED TODAY I.E. ON 1 ST SEPTEMBER, 2010. IN THIS CONNECTION, I WOULD LIKE TO INFORM TO YOUR HONOUR THAT THE COPY O F DOCUMENTS SEIZED BY THE LEARNED ASSESSING OFFICER H AS NOT BEEN FURNISHED TO ME. UNDER THE CIRCUMSTANCES, I AM NOT ABLE TO PREPARE WRITTEN SUBMISSION WHICH FACT WAS D ISCLOSED EARLIER ALSO. TILL THE DATE, I HAVE NOT RECEIVED TH E COPY OF SEIZED DOCUMENTS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I REQUEST YOUR HONOUR TO PLEASE ADJO URN THE HEARING FIXED ON SEPTEMBER 1, 2010 SIGN E DIE TILL THE RECEIPT OF DOCUMENTS BY ME . CIT(A) HAVING DISCUSSED THE ISSUE WITH CONCERN ACIT , DECIDED THE APPEAL EX PARTE AGAINST ASSESSEE BY OBSERVING A S UNDER: 8. FROM THE AFOREMENTIONED DISCUSSION, IT IS APPAR ENT THAT THE APPELLANT HAS ALSO MIS-REPRESENTED THE FAC TS BEFORE ME. INFACT, THE FACT REMAINS THAT ALL THE REQUISIT E DOCUMENTS HAVE ALREADY BEEN SUPPLIED TO APPELLANT V IDE NOTICE ISSUED U/S.142(1) DATED 04.06.2007. IT IS, T HEREFORE, APPARENT THAT THERE REMAINS NO GRIEVANCE ON THE PAR T OF APPELLANT ON THIS SCORE. THE APPELLANT HAS ADOPTED A VERY CASUAL APPROACH IN THE INCOME TAX PROCEEDINGS. 2.1 IT IS UNDISPUTED THAT ASSESSEE HAS MOVED APPLIC ATION FOR ADJOURNMENT ON 01.09.2010. CONSEQUENTLY, WE FIND T HAT IGNORING THE SAME, CIT(A) HAS REACHED TO CERTAIN CO NCLUSIONS HAVING DISCUSSED THE MATTER WITH CONCERN ACIT AS DI SCUSSED ABOVE. THERE IS NOTHING ON RECORD TO SUGGEST THAT ASSESSEE WAS CONFRONTED WITH DISCUSSION OF ACIT BY CIT(A), WHICH IS BASIS FOR REACHING CERTAIN CONCLUSION. IT IS NOT JUSTIFIED. OPPORTUNITY OF HEARING IS ESSENCE OF PRINCIPLE OF NATURAL JUSTICE, WHICH HAS IT(SS)A NO. 793/AHD/2010 FOR BLOCK PERIOD 1/4/95 TO 31/12/01(VIKASH A. SHAH VS. DCIT) PAGE 5 BEEN IGNORED IN THIS CASE. SO, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIM WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AF TER PROVIDING DUE OPPORTUNITY OF HEARING TO ASSESSEE. SINCE, WE ARE RESTORING THE ISSUE ON PRELIMINARY GROUND, SO WE ARE REFRAINI NG OURSELVES TO COMMENT ON MERIT OF ISSUE AT HAND. 3. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON THIS THE 06 TH DAY OF FEBRUARY, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,