Shri Sarang Sugandhilal Bora,, Ahmednagar v. DCIT, Ahmednagar

ITA 295/PUN/2009 | 2003-2004
Pronouncement Date: 27-08-2010 | Result: Allowed

Appeal Details

RSA Number 29524514 RSA 2009
Bench Pune
Appeal Number ITA 295/PUN/2009
Duration Of Justice 1 year(s) 5 month(s) 27 day(s)
Appellant Shri Sarang Sugandhilal Bora,, Ahmednagar
Respondent DCIT, Ahmednagar
Appeal Type Income Tax Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 27-08-2010
Assessment Year 2003-2004
Appeal Filed On 02-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 295/PN/2009 (ASSTT. YEAR : 2003-04) SHRI SARANG SUGANDHILAL BORA : APPELLANT A/P. MIRAJGAON TAL. KARJAT DIST. AHMEDNAGAR PAN: NOT AVAILABLE V/S. DEPUTY COMMISSIONER OF INCOME TAX : RESPONDENT AHMEDNAGAR CIRCLE AHMEDNAGAR ITA NO. 296/PN/2009 (ASSTT. YEAR : 2003-04) SHRI SUHAS SUGANDHILAL BORA : APPELLANT A/P. MIRAJGAON TAL. KARJAT DIST. AHMEDNAGAR PAN: NOT AVAILABLE V/S. DEPUTY COMMISSIONER OF INCOME TAX : RESPONDENT AHMEDNAGAR CIRCLE AHMEDNAGAR APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY :S/SHRI ABHAY DAMLE/SHARMA ORDER PER D. KARUNAKARA RAO AM THESE TWO APPEALS FILED BY THE ASSESSEES ARISE OUT OF THE COMMON ORDER OF THE CIT(A)-I PUNE DT. 22.12.2008 FOR A.Y. 2003-04. AT THE VERY OUTSET LD COUNSEL FOR THE ASSESSEES FILED A LETTER DT. 19.8.10 INFORMING THAT THESE TWO APPEALS RELATE TO BORA GROUP OF CASES WHICH WERE ALREADY HEARD AND PRONOU NCED VIDE ITA NO. 294/PN/2009 & OTHERS DATED 20.08.2010. THE COUNSEL ALSO REQUES TED FOR SETTING ASIDE THESE APPEALS ALSO IN TUNE WITH THE ABOVE REFERRED ORDER OF THE T RIBUNAL. 2. WE HAVE CONSIDERED THE ASSESSEES REQUEST AND PE RUSED THE ABOVE REFERRED ORDERS OF THE TRIBUNAL DT. 20.8.2010. FOR THE SAKE OF COMPLETENESS RELEVANT PART OF THE SAID ORDER (ITA 294/PN/2009 (A.Y. 2003-04) IS REPRO DUCED AS UNDER : ITA NO 295 & 296/PN/2009 SHRI SARANG & SUHAS BORA . A.Y. 2003-04 . PAGE OF 4 2 ITA 294/PN/2009 (A.Y. 2003-04) SHRI SANDEEP SUGA NDHILAL BORA 2. THIS IS THE APPEAL FILED BY THE ASSESSEE. AT THE VERY OUTSET THE LD COUNSEL BROUGHT TO OUR NOTICE THE ADDITIONAL GROUND FILED B EFORE US AND THE SAME READS AS UNDER : THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF THE ASSESSING OFFICER OF NOT GRANTING AN OPPORTUNIT Y OF HEARING AND THUS ACTING CONTRARY TO THE LAWS OF NATURAL JUSTICE IN THIS REGARD LD COUNSEL GAVE THE BACKGROUND OF T HE CASE STATING THAT AN ASSESSMENT ORDER WAS ORIGINALLY PASSED ON 23.4.2006 AND THE RECTIFICATION APPLICATION DT. 10.7.2006 WAS REJECTED VIDE THE PRO CEEDINGS DT. 3.11.2006. AGGRIEVED WITH THE SAME THE ASSESSEE FILED THE APP EAL BEFORE THE CIT(A) AGAINST THE SAID REJECTION ORDER AND CIT(A) PASSED AN ORDER IN THIS REGARD VIDE THE ORDER DT. 18.1.2007. A.O GAVE EFFECT TO THE SAID ORDER O F THE CIT(A) VIDE ORDER DT. 9.7.2007. AGGRIEVED WITH THE SAID ORDER DT. 9.7.20 07 ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AGAIN. CONSEQUENTLY THE CIT(A) PASSED THE IMPUGNED ORDER DT. 22.12.2008. IN THIS REGARD LD COUNSEL FOR THE ASSESSEE RAISED THE GROUND STATING THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE A.O OF NOT GRANTING AN OPPORTUNITY OF HEARING AND THUS ACTING CONTRARY TO THE LOSS OF NATURAL JUSTICE. IN THIS REGARD LD COUNSEL BROUGHT TO OUR NOTICE THE SPECIFIC DIRECTIONS OF THE CIT(A) IN THIS REGARD DURING THE EARLIER ROUND OF APPEALS WHEREIN THE A.O WAS DIRECTED TO GRANT AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE THE ISSUE RELATING TO RECTIFICATION IS DECIDED. FURTHE R THE COUNSEL DEMONSTRATED THE MANNER OF DECIDING THE ISSUE AGAINST THE ASSESSEE B Y THE A.O WITHOUT GRANTING THE OPPORTUNITY TO THE ASSESSEE. ON FACTS LD COUN SEL MENTIONED THAT THIS IS THE CASE WHERE THERE WAS SEARCH AND SEIZURE OPERATION A ND THE ASSESSEE OFFERED ADDITIONAL INCOME IN THE HANDS OF S/SHRI SARANG S HRI BORA SANDEEP S. BORA SUHAS S BORA AND THEIR SPOUSES AS THE CASE MAY BE WHEREAS THE ASSESSMENTS WERE COMPLETED BY THE A.O ADDING WHOLE OF THE SAID UNDISCLOSED INCOME IN THE HANDS OF S/SHRI SARANG SHRI BORA SANDEEP S. BORA SUHAS S BORA IGNORING THE FACT THAT THEIR SPOUSES ARE ALREADY THE REGULAR FIL ERS OF THE RETURNS AND RETURNS WERE FILED IN THEIR CASE PRIOR TO THE EVENT OF THE SEARCH. A.O. WAS UNDER MISTAKEN BELIEF THAT THE RETURNS WERE NOT FILED BY THEM AND THEY WERE NOT THE EXISTING ASSESSEES. THIS IS A RECTIFIABLE MISTAKE AND ASSESSMENTS WITH SUCH MISTAKES HAVE TO BE RECTIFIED. THE MISTAKE THOUGH A PPARENT WAS NOT ADJUDICATED AFTER GRANTING OF OPPORTUNITY OF BEING HEARD TO THE ASSESSEE DESPITE SPECIFIC DIRECTIONS GIVEN BY THE CIT(A) IN THE EARLIER PROCE EDINGS. ON THE OTHER HAND LD D.R. RELIED ON THE ORDERS OF THE REVENUE AND ARGUE D VEHEMENTLY STATING THAT THE AO FINALLY RECTIFIED THE MISTAKE ALTHOUGH THE E ND RESULT AFTER RECTIFICATION IS ONE AND THE SAME. HOWEVER HE FAIR IN ACCEPTING THE FACT THE AO DID NOT GIVE THE OPPORTUNITY TO THE ASSESSEE WHILE COMPLYING WITH TH E DIRECTION OF THE CIT(A). 4. WE HAVE PERUSED THE RELEVANT ORDERS OF RECORD AN D NOTICED THAT THERE IS CLEAR DIRECTIONS BY THE CIT(A) TO THE AO WITH REGAR D TO THE GRANT OF REASONABLE OPPORTUNITY TO THE ASSESSEE. ON THE CONTRARY PERUS AL OF THE ORDER DT. 9.7.2007 DOES NOT CONTAIN THE WHISPERS OF COMPLYING WITH SUC H DIRECTIONS OF THE CIT(A) IN GENERAL AND COMPLYING WITH THE DIRECTIONS RELATING TO GIVING OPPORTUNITY TO THE ASSESSEE IN PARTICULAR. WE HAVE ALSO PERUSED THE F OR NO. 35 AND THE GROUNDS APPENDED THERETO. GROUND 2 & 3 OF THE APPEAL BEFOR E THE CIT(A) ARE RELEVANT AND READ AS UNDER : 2. THE LEARNED ASSESSING OFFICER HAS FURTHER ERR ED IN LAW AND ON FACTS IN NOT GRANTING ANY OPPORTUNITY OF HEARING BEFORE D ECIDING THE APPLICATION U/S 154. 3. THE LEARNED A.O. HAS FURTHER ERRED IN LAW AND ON FACTS IN NOT PASSING A SPEAKING ORDER IN REJECTING THE APPLICATI ON U/SEC. 154 OF THE INCOME TAX ACT 1961. ITA NO 295 & 296/PN/2009 SHRI SARANG & SUHAS BORA . A.Y. 2003-04 . PAGE OF 4 3 THUS IT IS A CLEAR CASE OF PASSING THE ORDER BY TH E A.O WHILE GIVING EFFECT TO THE ORDERS OF THE CIT(A)WITH OUT GRANTING AN OPPORTUNIT Y TO THE ASSESSEE DESPITE CLEAR DIRECTIONS BY THE CIT(A) AND THE GRIEVANCE I S NOT REDRESSED BY THE CIT(A) DURING THE FIRST APPELLATE PROCEEDINGS VIDE ORDER DT. 22.12.2000. DR DID NOT BRING ANYTHING ON RECORD TO STATE THERE IS NO VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. THUS IT IS OBVIOUS THAT THERE IS BREACH TO THE PRINCIPLES OF NATURAL JUSTICE. THEREFORE THE IMPUGNED ORDERS I.E . ORDER DT. 9.7.2007 OF THE A.O IS MADE WITHOUT HEARING THE ASSESSEE AND ORDER DT. 22.12.2008 PASSED BY THE CIT(A) IS MADE WITHOUT GRANTING REDRESSAL TO THE A BOVE GROUNDS RELATING TO BREACH OF THE ESTABLISHED PRINCIPLES OF NATURAL JUS TICE. THEREFORE THE ADDITIONAL GROUNDS LEGAL IN NATURE ARE ADMITTED DESPITE THE OP POSITION FROM THE LD DR. FURTHER THE COUNSELS ARGUMENT THAT THE MATTER SHO ULD BE REFERRED TO THE A.O FOR ADJUDICATION OF THE ISSUE AFRESH AFTER GIVING O PPORTUNITY OF BEING HEARD TO THE ASSESSEE IS AN ACCEPTABLE ARGUMENT. THEREFORE WE SET ASIDE THE ORDERS OF THE CIT(A) AND RESTORE THE MATTER TO THE FILES OF A .O FOR FRESH ADJUDICATION OF THE ISSUE. AO SHALL COMPLY WITH THE DIRECTIONS OF THE CIT(A) AND GRANT THE REASONABLE OPPORTUNITY TO THE ASSESSEE SATISFACTORILY. ACCORDINGLY THE GROUNDS RAISED IN THE APPEAL AS W ELL AS THE ADDITIONAL GROUNDS RAISED ARE SET ASIDE. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. IN VIEW OF THE ABOVE THE GROUNDS RAISED IN THES E TWO APPEALS I.E. ITA NO. 295 & 296/PN/2009 ARE ALSO SET ASIDE. AO SHALL COMPLY WIT H THE DIRECTIONS OF THE CIT(A) AND GRANT THE REASONABLE OPPORTUNITY TO THE ASSESSEE SA TISFACTORILY. 4. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH DAY OF AUGUST 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 27TH AUGUST 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT -I PUNE 4. THE CIT(A)-I PUNE 4. THE D.R. B BENCH PUNE 5. GUARD FILE ITA NO 295 & 296/PN/2009 SHRI SARANG & SUHAS BORA . A.Y. 2003-04 . PAGE OF 4 4 BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE