Vivek Vasant Gandhi,, Ratnagiri v. Assistant Commissioner of Income-tax,,

ITA 1910/PUN/2013 | 2010-2011
Pronouncement Date: 25-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 191024514 RSA 2013
Assessee PAN ABNPG3981G
Bench Pune
Appeal Number ITA 1910/PUN/2013
Duration Of Justice 1 year(s) 27 day(s)
Appellant Vivek Vasant Gandhi,, Ratnagiri
Respondent Assistant Commissioner of Income-tax,,
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 25-11-2014
Date Of Final Hearing 03-11-2014
Next Hearing Date 03-11-2014
Assessment Year 2010-2011
Appeal Filed On 28-10-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NO.1910/PN/2013 (ASSESSMENT YEAR: 2010-11) SHRI VIVEK VASANT GANDHI PROP. OF M/S. SIDDESHWAR TRADERS AT POST SAWARDE TAL. CHIPLUN RATNAGIRI. PAN: ABNPG3981G . APPELLANT VS. THE ASST. COMMISSIONER OF INCOME TAX RATNAGIRI CIRCLE RATNAGIRI. . RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 05-11-2014 DATE OF PRONOUNCEMENT : 25-11-2014 ORDER PER SUSHMA CHOWLA JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) KOLHAPUR DATED 25.09.2013 RELATING TO ASSESSMENT YEAR 20 10-11 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT. 2. THE ASSESSEE HAS RAISED THE VARIOUS GROUNDS OF APPE AL BUT THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE IS VIDE GROUND OF APPEAL NO.1 WHICH READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING THE APPEAL OR DER WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE APPE LLANT. THE PRINCIPLES OF NATURAL JUSTICE ARE OFFENDED. THE AP PEAL ORDER BE SET ASIDE FOR FRESH ADJUDICATION ON MERITS BEFORE CIT(A)-KOLHAPUR. ITA NO.1910/PN/2013 SHRI VIVEK VASANT GANDHI 2 3. THE GRIEVANCE OF THE ASSESSEE IS AGAINST NON-AFFORDING OF AN OPPORTUNITY OF HEARING BY THE CIT(A). 4. THE BRIEF FACTS OF THE CASE ARE THAT SURVEY ON THE PREMISES OF THE ASSESSEE WAS CARRIED OUT ON 03.02.2010. THE ASSESSEE D URING THE COURSE OF SURVEY IN LIEU OF THE STOCK INVENTORY DECLARED A SUM OF RS.38 30 310/- AS ADDITIONAL INCOME FOR ASSESSMENT YEAR 20 10-11. THE ASSESSEE ALSO DECLARED A SUM OF RS.31 71 750/- ON AC COUNT OF HOUSE RENOVATION EXPENSES AND REPAIRS OF GODOWN SHED A S ADDITIONAL INCOME. HOWEVER THE ASSESSEE DID NOT INCLUDE THE SAID SU RRENDERED INCOME IN THE RETURN OF INCOME FILED ON 30.09.2010. IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE SAID SURRENDER WAS RETRACTED BY A LETTER DATED 24.05.2010. THE ASSESSING OFFICER DIS-REGARDED THE RETRACTION STATEMENT AND MADE A DDITION ON ACCOUNT OF THREE HEADS I.E. (I) UNACCOUNTED EXPENDITURE FOR RENOVATION OF HOUSE (II) UNACCOUNTED EXPENDITURE FOR REPAIRS OF GODOWN SHED AND (III) VALUE OF EXCESS STOCK FOUND DURING SURVEY. 5. BEFORE THE CIT(A) THERE WAS NON-COMPLIANCE BY THE ASS ESSEE TO THE NOTICES ISSUED. THE FIRST NOTICE WAS ISSUED ON 07.08.2 013 FOR COMPLIANCE ON 20.08.2013. THE ASSESSEE FILED A LETTER STATI NG THAT THE NOTICE WAS RECEIVED BY HIM ON 20.08.2013 AND IT WAS NOT P OSSIBLE TO ATTEND THE HEARING ON 20.08.2013. ANOTHER NOTICE DATED 21.08.2013 WAS ISSUED FIXING THE HEARING ON 03.09.2013. IN REPLY THE ASSESSEE FILED A LETTER STATING THAT HE HAD RECEIVED A LETTER DATED 17.01.2013 FROM THE ASST. VALUATION OFFICER AS PER WHICH THE INSPECTION OF THE PROPERTY WAS DUE IN SEPTEMBER AND ADJOURNMENT WAS SO UGHT BY THE ASSESSEE FOR A PERIOD OF TWO MONTHS. THE CIT(A) THEREAFTE R ISSUED NOTICE DATED 05.09.2013 FIXING THE HEARING ON 23.09.2013 TO WHICH ITA NO.1910/PN/2013 SHRI VIVEK VASANT GANDHI 3 THERE WAS NO COMPLIANCE AND THE ASSESSEE WAS HELD TO BE IN DEFAULT AND THE APPEAL OF THE ASSESSEE WAS DECIDED ON MERITS BY THE CIT(A ). 6. THE ASSESSEE IS AGGRIEVED BY THE NON-ALLOWANCE OF THE APPROPRIATE OPPORTUNITY OF HEARING BY THE CIT(A) AND CONFIR MATION OF THE ADDITION IN THE HANDS OF THE ASSESSEE WHICH WAS MADE ON THE BASIS OF SURVEY WITHOUT CONSIDERING THE RETRACTION STATEM ENT MADE BY THE ASSESSEE. THE PLEA OF THE ASSESSEE BEFORE US WAS T HAT REASONABLE OPPORTUNITY SHOULD HAVE BEEN PROVIDED TO THE ASSESSEE AND IN THE ABSENCE OF THE SAME THE PRINCIPLES OF NATURAL JUSTICE WERE VIOLAT ED AND THERE WAS NO MERIT IN THE ORDER OF CIT(A) IN CONFIRMING TH E ADDITIONS IN THE HANDS OF THE ASSESSEE. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLA CED RELIANCE ON THE ORDER OF CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY THE FACTS OF THE CASE ARE THAT SURVEY UNDER SE CTION 133A WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 03.02.2010 IN WHICH CERTAIN DECLARATION OF ADDITIONAL INCOME WAS MADE BY THE A SSESSEE. HOWEVER THE SAID DECLARATION OF ADDITIONAL INCOME WAS WITHDR AWN BY ASSESSEE BY WAY OF A LETTER DATED 24.05.2010. THEREAFTER IN THE RETURN OF THE INCOME FILED ON 30.09.2010 THE ASSESSEE DID NOT INCLUD E THE SAID ADDITIONAL INCOME DECLARED DURING THE COURSE OF SURVEY . THE PLEA OF THE ASSESSEE BEFORE US WAS THAT THE RETRACTION OF TH E STATEMENT WAS JUSTIFIED IN VIEW OF VARIOUS FACTORS AND FACTS AND CIRCUMSTAN CES OF THE CASE AND IN THE ABSENCE OF ANY PROPER OPPORTUNITY BEING GRANTED BY THE CIT(A) AND THE MATTER HAVING BEEN DECIDED EX-PARTE GRAVE INJUSTICE WAS CAUSED TO THE ASSESSEE. THE PERUSAL OF TH E APPELLATE ITA NO.1910/PN/2013 SHRI VIVEK VASANT GANDHI 4 ORDER PASSED BY THE CIT(A) REFLECTS THAT THE FIRST NOTICE OF HEARING WAS ISSUED ON 07.08.2013 TO APPEAR ON 20.08.2013. THE SAID NO TICE WAS RECEIVED BY THE ASSESSEE AFTER 20.08.2013 AND REQUEST W AS MADE TO ADJOURN THE PROCEEDINGS. THEREAFTER ANOTHER NOTICE WA S ISSUED BY THE CIT(A) ON 21.08.2013 ITSELF FOR APPEARANCE ON 03.09.2013 AND THIS LETTER WAS RECEIVED BY THE ASSESSEE. HOWEVER ON THE S AME DATE OF HEARING THE ASST. VALUATION OFFICER HAD TO VISIT THE PROPERT Y OF THE ASSESSEE AND REQUEST WAS MADE TO ADJOURN THE CASE. THE SAID CASE WAS ADJOURNED AND ANOTHER NOTICE WAS ISSUED BY THE CI T(A) ON 05.09.2013 FIXING THE HEARING ON 23.09.2013. HOWEVER THE RE WAS NO COMPLIANCE TO THE SAID NOTICE ISSUED BY THE CIT(A). CONSEQ UENT THERETO THE CIT(A) UPHELD THE ADDITIONS MADE BY THE ASSE SSING OFFICER AND DISMISSED THE APPEAL OF THE ASSESSEE. THE ASSESSEE IS AGGRIEVED BY EX-PARTE ORDER PASSED BY THE CIT(A). 9. ON THE PERUSAL OF RECORD WE FIND THAT IN RESPONSE TO VARIOUS NOTICES ISSUED BY THE CIT(A) THERE WAS COMPLIANCE BY THE ASSESSEE BY WAY OF ASKING ADJOURNMENTS OF HEARING. HOWEVER WITH REGA RD TO THE NOTICE ISSUED ON 05.09.2013 FOR APPEARANCE ON 23.09.2013 THERE WAS NO COMPLIANCE BY THE ASSESSEE AND THE MATTER WAS DECID ED EX-PARTE BY THE CIT(A). IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AS POINTED OUT BY THE ASSESSEE THAT HE WAS APPEARING DAY TO DAY EXCEPT ON THE LAST DATE OF HEARING ON WHICH THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER. WE ARE OF THE VIEW THAT NO REASONABLE OPPORTUNIT Y OF HEARING HAS BEEN GRANTED TO THE ASSESSEE. THE CIT(A) WHILE ADJU DICATING THE APPEAL HAS FAILED TO CONSIDER THE RETRACTION STATEMENT MA DE BY THE ASSESSEE AND THE EFFECT OF SUCH RETRACTION STATEMENT O N THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEE. IN THE ENTIRETY OF A BOVE FACTS AND CIRCUMSTANCES AND FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE WE DEEM ITA NO.1910/PN/2013 SHRI VIVEK VASANT GANDHI 5 IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF CIT(A) WHO IN TURN SHALL DECIDE THE ISSUE DE-NOVO AFTER AFFORDING REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE. THE GROUND OF APPEAL NO.1 RAISE D BY THE ASSESSEE IS THUS ALLOWED. IN VIEW OF OUR ABOVE SETTING A SIDE THE ISSUE BACK TO THE FILE OF CIT(A) WE ARE NOT ADJUDICATING THE GROU ND OF APPEAL RAISED BY THE ASSESSEE ON MERITS. SO THE GROUND OF APP EAL NO.1 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF NOVEMBER 2014. SD/- SD/- (G.S. PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 25 TH NOVEMBER 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A) KOLHAPUR; 4) THE CIT KOLHAPUR; 5) THE DR A BENCH I.T.A.T. PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T. PUNE