Shri Kishor Bachuram Kapdi, Ahmedabad V. The Income Tax Officer, Ward-8(4), Ahmedabad

MA 51/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1125 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Section: 143(3); 254(2); 69; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) M.A. NO: 51/AHD/2019 (IN ITA NO. 2097/AHD/2015) (ASSESSMENT YEAR: 2011-12) SHRI KISHOR BACHURAM KAPDI C/O. A.P. SANDESARA & CO. CHARTERED ACCOUNTANTS 104, MAURYA COMPLEX, NEAR C.U. SHAH COLLEGE, OFF. ASHRAM ROAD AHMEDABAD- 380009 V/S INCOME TAX OFFICER WARD- 8(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AGG PK3 897 B APPELLANT BY : SHRI KALPESH DOSHI, A.R. RESPONDENT BY : SHRI S. K. DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -09-201 9 DATE OF PRONOUNCEMENT : 11-09-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX PARTE ORDER DT. 05.06.2018 PASSED BY THIS TRIBUNAL. 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: M.A. NO 51/AHD/2019 . A.Y. 2011-12 2 1. THE APPELLANT HAD FILED THE APPEAL AGAINST THE ORDER OF LEARNED CIT(A) AGAINST THE ADDITION U/S. 69 OF THE IT. ACT, 1961 ON ACCOUNT OF CASH DEP OSIT IN BANK ACCOUNT. 2. IT IS RESPECTFULLY SUBMITTED THAT THE GROUNDS O F APPEAL TAKEN UP BY THE APPELLANT IN THE APPEAL MEMO (FORM 36) FILED BEFORE THE HON'BLE ITAT ARE AS UNDER: A. THAT, LEARNED CIT(A) WAS OUGHT TO HAVE CONSIDERE D THE FACT THAT APPELLANT HAD EXPLAINED THE SOURCE OF CASH DEPOSIT, AGGREGATING T O RS. 19,00,000, BY SUBMITTING THE BANK STATEMENT OUT OF WHICH CASH WITHDRAWN ON VARIO US DATES AND SAME WAS DEPOSITED ON LATER DATES WITH THE SAME BANK ACCOUNT. B. THAT, LEARNED CIT(A) WAS OUGHT TO HAVE CONSIDERE D THE FACT THAT THE LD. AO FAILED TO ESTABLISH ON RECORD TO PROVE THAT THE APPELLANT HAD UTILIZED CASH WITHDRAWAL FROM THE BANK FOR SOME OTHER REASONS THAN RE-DEPOSITING, SUB SEQUENTLY, WITH THE SAME BANK ACCOUNT UNDER CONSIDERATION. C. THAT, LEARNED CIT(A) ERRED IN APPLYING THE RATIO IN THE CASE OF SUMATI DAYAL VS. CIT (214 ITR 0801) WHICH IS CLEARLY DISTINGUISHABLE ON FACTS ON THE CONTRARY, HE WAS OUGHT TO HAVE APPLIED THE RATIO LAID DOWN, BY THE AHMEDAB AD TRIBUNAL, IN THE CASE OF SAURIN NANDKUMAR SHODHAN VS. ITO (36 CCH 0061) AS FACTS OF THAT CASE WERE SIMILAR TO THE FACT OF THE INSTANT CASE OF THE APPELLANT. D. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR WITHDRAW ANY AFORESAID GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLA NT WAS EMPLOYED AS A DIRECTOR OF M/S. VASHISHTHA INDUSTRIES LTD. (FORMERLY KNOWN AS M/S. VAISHALI AG RICOMM & MINES PVT. LTD.) AND HAS FILED THE RETURN OF INCOME ON 28-09-2011 DECLARING TOTAL INCO ME OF RS. 4,00,000/-, BEING SALARY RECEIVED FROM THE SAID COMPANY. 4. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE I T. ACT, ON 26-03-2014, BY MAKING ADDITION U/S 69 OF THE IT. ACT, 1961 ON ACCOUNT OF CASH DEPOSITS IN BANK ACCOUNT. 5. THE LEARNED CIT(A) CONFIRMED THE ORDER OF THE LE ARNED ASSESSING OFFICER. THEREAFTER, THE APPELLANT FILED AN APPEAL TO THE HON'BLE ITAT AGAIN ST THE ORDER OF THE LEARNED CIT(A). 6. THE HON'BLE TRIBUNAL HAS DISMISSED THE APPEAL SI NCE NOBODY APPEARED ON BEHALF OF THE APPELLANT AND NO APPLICATION WAS FILED FOR ADJOURNM ENT. 7. WE WOULD LIKE TO STATE THAT THE HEARING FOR THE SAID CASE WAS FIXED ON 04/06/2018. HOWEVER, ANOTHER CASE OF A RELATED PARTY OF THE APPELLANT, M /S. VAISHALI AGRICOMM & MINES PVT. LTD., ITA NO. 50/A/17 FOR AY 2011-12 WAS ONGOING IN THE HON'B LE TRIBUNAL BENCH 'C' AND M/S. VAISHALI AGRICOMM & MINES PVT. LTD., ITA NO. 2319/A/16 FOR A Y 2009-10 WAS ALSO ONGOING IN THE HON'BLE TRIBUNAL BENCH 'A'. 8. THEREFORE, DUE TO THE PRESENCE OF MULTIPLE APPEA LS RELATED TO THE GROUP OF THE APPELLANT, THERE WAS CONFUSION AMONGST WHICH APPEALS WERE FIXED ON 0 4/06/2018. THE AR OF THE APPELLANT WAS UNDER THE IMPRESSION THAT THE SAID MATTER IS FIXED IN BENCH 'C' AND NOT IN THE 'SMC' BENCH AND ON THE SAID DATE I.E. 04/06/2018 BENCH 'C' WAS NOT FUNCTIONING AND THEREFORE DUE TO THIS CONFUSION NO ADJOURNMENT WAS FILED AND NO ONE APPEA RED. 9. THE APPELLANT WAS UNAWARE OF THE FACT THAT NOBOD Y APPEARED ON HIS BEHALF NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED. THEREFORE, THE NON-COMPL IANCE WAS DUE TO THE BONAFIDE REASONS AND THERE WAS NO MALAFIDE INTENTION OF THE APPELLANT TO CONCEAL ANY DETAILS ON ACCOUNT OF THE SAME. M.A. NO 51/AHD/2019 . A.Y. 2011-12 3 10.THEREFORE, IT IS REQUESTED TO RECTIFY THE MISTAK E AND CONSIDER THE MERITS OF THE CASE AFTER RECTIFYING THE MISTAKE. 11.LT IS RESPECTFULLY SUBMITTED TO RECALL THE ORDER OF THE HON'BLE ITAT AND THE ISSUE MAY BE DECIDED ON MERITS AFTER CONSIDERING THE VARIOUS FAC TS AND EVIDENCES PRODUCED BY THE APPELLANT. 12. WE MAY REFER TO RULE 24 OF THE ITAT RULES: HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT- WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNE D, THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE AP PEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING T HE RESPONDENT. PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WA S SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. 13. FURTHER WE WOULD LIKE TO PLACE RELIANCE ON THE FOLLOWING DECISIONS: DCIT V. M/S. VISAL ROADLINES (ITAT AHD) (ITA N O. 1640/AHD/2005) CIT V. ANSAL HOUSING & CONSTRUCTION (DELHI) (2 74ITR 131) 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 05.06.2018, WE FIND THAT IN SPITE OF SERVICE OF NOT ICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPL ICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 04.06.2018. THUS, FOLLO WING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMIS SED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUT ION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [04.06.2018]. 5. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE REC ALL THE ORDER DATED 05.06.2018 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. M.A. NO 51/AHD/2019 . A.Y. 2011-12 4 6. NEXT DATE OF HEARING IN THIS MATTER IS 20.11.2019 A ND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NO TICE WILL BE SENT TO ANY OF THE PARTIES. 7. IN THE RESULT, THE MISC. APPLICATION FILED BY THE A SSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 11-09-2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 11/09/2019 TRUE COPY TANMAY 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 1.DATE OF DICTATION 06- 09 -2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE OT HER MEMBER -09-2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S -09 -2019. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 11 - 09-2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11-09-2019. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER