The DCIT, Circle-9,, Surat v. Shri Jayesh Rameshchandra Gandhi, Surat

ITA 3260/AHD/2011 | 2008-2009
Pronouncement Date: 29-02-2012 | Result: Allowed

Appeal Details

RSA Number 326020514 RSA 2011
Assessee PAN ABKPG0796Q
Bench Ahmedabad
Appeal Number ITA 3260/AHD/2011
Duration Of Justice 2 month(s) 3 day(s)
Appellant The DCIT, Circle-9,, Surat
Respondent Shri Jayesh Rameshchandra Gandhi, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 29-02-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-02-2012
Assessment Year 2008-2009
Appeal Filed On 26-12-2011
Judgment Text
-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI MUKUL KR. SHRAWAT - JM AND SHRI ANIL CHATURVEDI - AM ITA NO.3260/AHD/2011 (ASSESSMENT YEAR:-2008-09) THE DEPUTY COMMISSIONER OF INCOME- TAX CIRCLE-9 SURAT V/S SHRI JAYESH RAMESHCHANDRA GANDHI GANDHI COLONY A.K. ROAD SURAT PAN: ABKPG 0796 Q [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI SAMIR TEKRIWAL SR. DR ASSESSEE BY:- SHRI MEHUL K PATEL AR DATE OF HEARING:- 27-02-2012 DATE OF PRONOUNCEMENT:- 29-02-2012 O R D E R PER ANIL CHATURVEDI (AM) :- THIS IS APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 22.8.2011 OF CIT(A) -V SURAT RELATING TO ASSESSMENT YEAR 2008-09. THE BRIEF FACTS OF THE PRESENT CASE ARE AS UNDER: 2. THE ASSESSEE FILED RETURN OF INCOME ON 31.7.2008 DECLARING TOTAL LOSS OF RS.6 75 807/-. THE RETURN WAS ORIGINA LLY PROCESSED U/S 143(1) BUT LATER PICKED UP FOR SCRUTINY. THE AS SESSING OFFICER ISSUED NOTICES CALLING FOR THE DETAILS AND ALSO DIR ECTING THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS. THE ASSE SSEE FILED PARTIAL DETAILS. THE ASSESSING OFFICER THEREFORE PR OCEEDED TO COMPLETE THE ASSESSMENT EX PARTE U/S 144 R. W. SECT ION 143(3). HE NOTED THAT THE ASSESSEE HAS SHOWN UNSECURED LOAN OF 2 RS.63 32 660/-. ON THE GROUND THAT THE ASSESSEE DID NOT FURNISH COMPLETE DETAILS AND SUPPORTING EVIDENCES 25% OF T HE UNSECURED LOANS AMOUNTING TO RS.15 83 165/- WAS ADDED TO THE TOTAL INCOME. 3 BEFORE THE CIT(A) THE ASSESSEE DISPUTED THE ADDIT ION OF RS.15 83 165/- MADE BY THE ASSESSING OFFICER. THE A SSESSEE ALSO FURNISHED THE CONFIRMATIONS OF THE LOANS BEFORE THE CIT(A). THE CIT(A) VIDE HIS ORDER DATED 22.8.2011 DELETED THE A DDITIONS ON THE GROUND THAT ALL THE LOANS WERE CARRIED FORWARD LOANS AND NO NEW LOANS HAVE BEEN TAKEN DURING THE YEAR. HE FURTH ER HELD THAT IF AT ALL THE ASSESSING OFFICER WANTED TO MAKE ADDITIO NS TO THE LOAN HE SHOULD HAVE MADE THE ADDITION OF THE WHOLE OF TH E UNSECURED LOANS AND NOT ONLY OF THE 25% OF THE LOAN. 4 IN THE PRESENT APPEAL OF THE REVENUE THE DEPARTM ENT IS AGGRIEVED BY THE ORDER OF CIT(A). IT IS THE PLEA OF THE DEPARTMENT THAT THE LEARNED CIT(A) HAS ERRED IN DEC IDING THE APPEAL WITHOUT ASKING THE REMAND REPORT FROM THE AS SESSING OFFICER AND THEREBY VIOLATED RULE 46A OF THE INCOME TAX RULES 1962. THE REVENUE IS ALSO AGGRIEVED BY THE DELETION OF RS.15 83 165/-. 5 WE HAVE CONSIDERED THE RIVAL CONTENTIONS GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE INSTANT CAS E UNDISPUTEDLY BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE OR DETAILS WITH REGARD TO THE LOAN CREDIT OF RS.63 32 660/-. BEFORE THE CIT(A) THE ASSESSEE HAS HOWEVER FURNISHED THE COPIES OF CONFIRMATIONS. THESE DOCUME NTS WERE FURNISHED BEFORE THE CIT(A) FOR THE FIRST TIME AS P ER PROVISIONS 3 OF RULE 46A. THE CIT(A) IN THE INTEREST OF FAIRNESS AND JUSTICE AND IN ORDER TO COMPLY WITH THE TERMS OF R. 46A OUG HT TO HAVE PROVIDED OPPORTUNITY TO THE ASSESSING OFFICER BEFOR E ENTERTAINING ADDITIONAL EVIDENCE AND BEFORE PLACING RELIANCE THE REON. IT IS AN UNDISPUTED FACT THAT THE CIT(A) DID NOT GRANT ANY S UCH OPPORTUNITY TO THE ASSESSING OFFICER. 6 WE THEREFORE SET ASIDE THE ORDER OF THE CIT(A) TO THE FILE OF THE ASSESSING OFFICER MORE SO IN VIEW OF THE FACT T HAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS AN EXPARTE ORDE R PASSED U/S 144 R.W.S. 143(3). THE MATTER IS THEREFORE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO H IM TO EXAMINE THE EVIDENCE ADDUCED BY THE ASSESSEE BEFORE THE CIT (A) AND TAKE A DECISION AFRESH IN ACCORDANCE WITH LAW. THE ASSES SEE SHALL BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. THUS THE APPEAL IS DISPOSED OFF FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT TODAY ON 29-02-2012 SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (ANIL CHATURVEDI) ACCOUNTANT MEMBER DATE : 29-02-2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI JAYESH RAMESHCHANDRA GANDHI GANDHI COLONY A.K. ROAD SURAT 2. THE DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-9 SURAT 4 3. CIT CONCERNED 4. CIT(A)-V SURAT 5. DR ITAT AHMEDABAD BENCH-B AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD