The ITO, Ward-6(1), Surat V. Shri Chirag Kantilal Patel, Surat

MA 181/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1744 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: O P BATHEJA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) M. A. NO. 181/AHD/2013 (IN ITA NO. 289 0/AHD/2012) (ASSESSMENT Y EAR: 2008-09) THE INCOME TAX OFFICER, WARD-6(1), SURAT V/S SHRI CHIRAGKUMAR KANTILAL PATEL 3 SANDYA SADAN, GANGAPUR, NAVA FALIA, GANGADHARA, PALSANA, DIST. SURAT. (APPELLANT) (RESPONDENT) PAN: AKFPP 6659A APPELLANT BY : NONE RESPONDENT BY : SHRI O.P. BATHEJA, SR. D.R. ( )/ ORDER DATE OF HEARING : 04-04-2014 DATE OF PRONOUNCEMENT : 30 -05-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS M.A. THE REVENUE HAS SUBMITTED FOR RECALLIN G OF THE EX-PARTE ORDER OF TRIBUNAL IN ITA NO. 2890/AHD/2012 ORDER DA TED 22.02.2013. 2. BEFORE US, THE LD. D.R. SUBMITTED THAT THROUGH THE PENALTY PROCEEDINGS, THE ASSESSEE DID NOT TURN UP FOR THE HEARING GRANTE D TO HIM NOR ANY WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE. THE A.O THEREFORE TAKING INTO CONSIDERATION THE FACTS AND EVIDENCES IN POSSE SSION OF THE MA NO 181/A/13 (IN I TANO. 2890/A/12) . A.Y. 2008- 09 2 DEPARTMENT LEVIED PENALTY U/S. 271(1)(C). IT WAS F URTHER SUBMITTED THAT NO DETAILS OF PAYMENT OR VOUCHERS WERE FILED BY THE ASSESSEE EITHER DURING THE APPELLATE PROCEEDINGS BEFORE CIT(A). IT WAS FURTHER SUBMITTED DURING THE ASSESSMENT PROCEEDINGS OR PENALTY PROCEE DINGS, THE ASSESSEE HAD NEVER TAKEN THE PLEA THAT THE CASH DEPOSITS WAS INCOME IN HUF CAPACITY OR HIS WIVES BUSINESS INCOME. IT WAS ONL Y BEFORE HONBLE TRIBUNAL THAT ASSESSEE HAD TAKEN THE STAND FOR THE FIRST TIME THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS OUT OF THE RECEIP TS OF BOOK FROM THE CUSTOMERS AND THEREFORE THE DEPARTMENT HAD NO OPPOR TUNITY TO CONTROVERT THE CLAIM OF ASSESSEE EITHER DURING THE ASSESSMENT PROCEEDINGS OR PENALTY PROCEEDINGS. IT WAS THEREFORE SUBMITTED THAT THE O RDER DELETING THE PENALTY BE RECALLED. ON BEHALF OF ASSESSEE NONE APP EARED BUT HOWEVER WRITTEN SUBMISSIONS WERE FILED. IN THE WRITTEN SUB MISSIONS, THE ASSESSEE SUBMITTED THAT HE HAD FILED THE VOUCHERS ETC BEFORE CIT(A) WHEN THE QUANTUM APPEAL WAS HEARD. HE FURTHER SUBMITTED THAT HONBLE ITAT HAS CORRECTLY CANCELLED THE LEVY OF PENALTY AND THUS OB JECTED TO THE PRAYER OF REVENUE TO RECALL THE ORDER. 3. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATER IAL ON RECORD. WE FIND THAT BEFORE US, REVENUE HAS STATED THAT THE AS SESSEE HAD NEVER TAKEN THE PLEA THAT THE CASH DEPOSITS WAS INCOME IN HUF C APACITY OR HIS WIVES INCOME DURING THE ASSESSMENT PROCEEDINGS OR PENALTY PROCEEDINGS. EVEN NO SUCH CLAIM WAS MADE BEFORE CIT(A) AND IT WAS FOR THE FIRST TIME BEFORE THE TRIBUNAL, THE ASSESSEE HAD TAKEN THE STA ND THAT THE CASH DEPOSITS IN BANK ACCOUNTS WERE OUT OF THE RECEIPTS FROM THE CUSTOMERS AND THEREFORE THE DEPARTMENT HAD NO OPPORTUNITY TO CONT ROVERT THE CLAIM OF ASSESSEE. IN VIEW OF THE AFORESAID SUBMISSIONS OF R EVENUE WHICH HAS NOT MA NO 181/A/13 (IN I TANO. 2890/A/12) . A.Y. 2008- 09 3 BEEN CONTROVERTED BY ASSESSEE BY BRINGING ANY MATER IAL ON RECORD. WE ARE OF THE VIEW THAT THERE IS APPARENT MISTAKE ON R ECORD. WE THEREFORE RECALL THE ORDER DATED 22.02.2013. 4. IN THE RESULT, THE M.A. OF REVENUE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 05 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY 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,AHM EDABAD