Suhas S. Bora, v. ACIT,

ITA 983/PUN/2008 | 2004-2005
Pronouncement Date: 20-08-2010 | Result: Allowed

Appeal Details

RSA Number 98324514 RSA 2008
Assessee PAN ABQPB4652C
Bench Pune
Appeal Number ITA 983/PUN/2008
Duration Of Justice 2 year(s) 1 month(s) 4 day(s)
Appellant Suhas S. Bora,
Respondent ACIT,
Appeal Type Income Tax Appeal
Pronouncement Date 20-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 20-08-2010
Assessment Year 2004-2005
Appeal Filed On 16-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) S.N ITA NO. AY APPELLANT V. RESPONDENT 1. 875/PN/2008 1999-00 SHRI SANDEEP SUGANDHILAL BORA A/P. MIRAJGAON TAL. KARJAT DIST. AHMEDNAGAR PAN: ABQPB4652C ACIT AHMEDNAGAR CIRCLE AHMEDNAGAR 2. 407/PN/2008 2003-04 -DO- -DO- 3. 984/PN/2008 2004-05 -DO- -DO- 4. 294/PN/2009 2003-04 -DO- -DO- 5. 405/PN/2008 2003-04 SHRI SUHAS SUGANDHILAL BORA A/P. MIRAJGAON TAL. KARJAT DIST. AHMEDNAGAR PAN:AHYPB5398M - DO- 6. 874/PN/2008 1999-00 -DO- -DO- 7. 983/PN/2008 2004-05 -DO- -DO- 8. 876/PN/2008 1999-00 SHRI SARANG SUGANDHILAL BORA A/P. MIRAJGAON TAL. KARJAT DIST. AHMEDNAGAR PAN: AGRPB1593J -DO- 9. 406/PN/2008 2003-04 -DO- -DO- 10. 985/PN/2008 2004-05 -DO- -DO- APPELLANT BY : 1-10 SHRI V.L. JAIN RESPONDENT BY : 1-10 SHRI ABHAY DAMLE ORDER PER D. KARUNAKARA RAO AM THERE ARE TEN APPEALS UNDER CONSIDERATION AND THEY INVOLVE THREE ASSESSES NAMELY SHRI SANDEEP SUGANDHILAL BORA SHRI SUHAS SUG ANDHILAL BORA SHRI SARANG SUGANDHILAL BORA. THESE ARE THE APPEALS OF THE ASSE SSES AND THE APPEAL-WISE ADJUDICATION IS GIVEN AS UNDER. TO START WITH ITA NO. 294/PN/2009 FOR A.Y. 2003-04 IS TAKEN UP. ITA 294/PN/2009 (A.Y. 2003-04) SHRI SANDEEP SUGAN DHILAL 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 : ITA NO 294/PN/2009 983/PN/08 ETC.SHRI SANDEEP SUGANDHILAL BORA & SUHAS SUGANDHILAL BORA E TC. A.Y. 1999-00 2003-04 ETC. PAGE OF 5 2 THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF THE ASSESSING OFFICER OF NOT GRANTING AN OPPORTUNITY 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 RE CTIFICATION APPLICATION DT. 10.7.2006 WAS REJECTED VIDE THE PROCEEDINGS DT. 3.11.2006. AG GRIEVED WITH THE SAME THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) AGAINST THE SAID REJECTION ORDER AND CIT(A) PASSED AN ORDER IN THIS REGARD VIDE THE ORDER DT. 1 8.1.2007. A.O GAVE EFFECT TO THE SAID ORDER OF THE CIT(A) VIDE ORDER DT. 9.7.2007. AGGRI EVED WITH THE SAID ORDER DT. 9.7.2007 ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AGAIN. C ONSEQUENTLY THE CIT(A) PASSED THE IMPUGNED ORDER DT. 22.12.2008. IN THIS REGARD LD C OUNSEL FOR THE ASSESSEE RAISED THE GROUND STATING THAT THE CIT(A) HAS ERRED IN CONFIRM ING 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 ASSES SEE BEFORE THE ISSUE RELATING TO RECTIFICATION IS DECIDED. FURTHER THE COUNSEL DEM ONSTRATED THE MANNER OF DECIDING THE ISSUE AGAINST THE ASSESSEE BY THE A.O WITHOUT GRANT ING THE OPPORTUNITY TO THE ASSESSEE. ON FACTS LD COUNSEL MENTIONED THAT THIS IS THE CAS E WHERE THERE WAS SEARCH AND SEIZURE OPERATION AND THE ASSESSEE OFFERED ADDITION AL INCOME IN THE HANDS OF S/SHRI SARANG SHRI BORA SANDEEP S. BORA SUHAS S BORA A ND 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 S HRI BORA SANDEEP S. BORA SUHAS S BORA IGNORING THE FACT THAT THEIR SPOUSES ARE ALR EADY THE REGULAR FILERS OF THE RETURNS AND RETURNS WERE FILED IN THEIR CASE PRIOR TO THE E VENT 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 ASSES SMENTS WITH SUCH MISTAKES HAVE TO BE RECTIFIED. THE MISTAKE THOUGH APPARENT WAS NOT ADJU DICATED AFTER GRANTING OF OPPORTUNITY OF BEING HEARD TO THE ASSESSEE DESPITE SPECIFIC DIRECTIONS GIVEN BY THE CIT(A) IN THE EARLIER PROCEEDINGS. ON THE OTHER HAN D LD D.R. RELIED ON THE ORDERS OF THE REVENUE AND ARGUED VEHEMENTLY STATING THAT THE AO FINALLY RECTIFIED THE MISTAKE ALTHOUGH THE END RESULT AFTER RECTIFICATION IS ONE AND THE SAME. HOWEVER HE FAIR IN ACCEPTING THE FACT THE AO DID NOT GIVE THE OPPORTUN ITY TO THE ASSESSEE WHILE COMPLYING WITH THE 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 REGARD TO T HE GRANT OF REASONABLE OPPORTUNITY TO THE ASSESSEE. ON THE CONTRARY PERUSAL OF THE ORDER DT. 9.7.2007 DOES NOT CONTAIN THE ITA NO 294/PN/2009 983/PN/08 ETC.SHRI SANDEEP SUGANDHILAL BORA & SUHAS SUGANDHILAL BORA E TC. A.Y. 1999-00 2003-04 ETC. PAGE OF 5 3 WHISPERS OF COMPLYING WITH SUCH DIRECTIONS OF THE C IT(A) IN GENERAL AND COMPLYING WITH THE DIRECTIONS RELATING TO GIVING OPPORTUNITY TO TH E ASSESSEE IN PARTICULAR. WE HAVE ALSO PERUSED THE FOR NO. 35 AND THE GROUNDS APPENDED THE RETO. GROUND 2 & 3 OF THE APPEAL BEFORE THE CIT(A) ARE RELEVANT AND READ AS UNDER : 2. THE LEARNED ASSESSING OFFICER HAS FURTHER ERRE D IN LAW AND ON FACTS IN NOT GRANTING ANY OPPORTUNITY OF HEARING BEFORE DECIDING 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 APPLICATION U/SEC. 154 OF THE INCOME TAX ACT 1961. 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 OPPORTUNITY TO TH E ASSESSEE DESPITE CLEAR DIRECTIONS BY THE CIT(A) AND THE GRIEVANCE IS NOT REDRESSED B Y 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. 22.12.20 08 PASSED BY THE CIT(A) IS MADE WITHOUT GRANTING REDRESSAL TO THE ABOVE GROUNDS REL ATING TO BREACH OF THE ESTABLISHED PRINCIPLES OF NATURAL JUSTICE. THEREFORE THE ADDIT IONAL GROUNDS LEGAL IN NATURE ARE ADMITTED DESPITE THE OPPOSITION FROM THE LD DR. FU RTHER THE COUNSELS ARGUMENT THAT THE MATTER SHOULD BE REFERRED TO THE A.O FOR ADJUDI CATION OF THE ISSUE AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IS AN AC CEPTABLE 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 SATISFAC TORILY. ACCORDINGLY THE GROUNDS RAISED IN THE APPEAL AS WELL AS THE ADDITIONAL GROU NDS RAISED ARE SET ASIDE. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.875/PN/2008 407/PN/2008 & ITA NO. 984/PN/20 08 SHRI SANDEEP SUGANDHILAL BORA 6. THESE ARE THE APPEALS FILED BY THE ASSESSEE A GAINST THE ORDER OF CIT(A)-I PUNE ALL AGAINST THREE SEPARATE ORDERS DT. 7 3 2008 5.12.2 007 & 17.4.2008. IN LEMINE THE LD COUNSEL FOR THE ASSESSEE STATED THAT THESE APPEALS SHOULD ALSO BE SET ASIDE TO THE FILES OF THE A.O FOR THE REASON THAT THE OUTCOME OF THE ISSUES RAISED IN THE APPEAL VIDE ITA NO. 294/PN/2009 (SUPRA) HAS A BEARING ON ALL THESE THREE APPEALS. AFTER HEARING BOTH ITA NO 294/PN/2009 983/PN/08 ETC.SHRI SANDEEP SUGANDHILAL BORA & SUHAS SUGANDHILAL BORA E TC. A.Y. 1999-00 2003-04 ETC. PAGE OF 5 4 THE PARTIES WE FIND MERIT IN THE ARGUMENTS OF THE COUNSEL. ACCORDINGLY THE GROUNDS RAISED IN ALL THESE THREE APPEALS ARE ALSO SET ASI DE. 7. IN THE RESULT THESE THREE APPEARS ARE ALLOWED F OR STATISTICAL PURPOSES. ITA NO. 874/PN/2008 405/PN/2008 AND 983/PN/2008 SHRI SUHAS SUGANDHILAL BORA 8. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAI NST THE ORDER OF CIT(A)-I PUNE DT. 07.3.2008 05.12.2007 AND 17.4.2008. IN LEMINE THE LD COUNSEL FOR THE ASSESSEE STATED THAT THESE APPEALS SHOULD ALSO BE SET ASIDE TO THE FILES OF THE A.O FOR THE REASON THAT THE OUTCOME OF THE ISSUES RAISED IN THE APPEA L VIDE ITA NO. 294/PN/2009 (SUPRA) HAS A BEARING ON ALL THESE THREE APPEALS. AFTER H EARING BOTH THE PARTIES WE FIND MERIT IN THE ARGUMENTS OF THE COUNSEL. ACCORDINGLY THE G ROUNDS RAISED IN ALL THESE THREE APPEALS ARE ALSO SET ASIDE. 9. IN THE RESULT THESE THREE APPEARS ARE ALLOWED F OR STATISTICAL PURPOSES. ITA NO. 876/PN/2008 406/PN/2008 AND 985/PN/2008- S HRI SARANG SUGANDHILAL BORA 10. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A)-I PUNE DT. 07.3.2008 22.12.2008 AND 17.04.2008. IN LEMIN E THE LD COUNSEL FOR THE ASSESSEE STATED THAT THESE APPEALS SHOULD ALSO BE SET ASIDE TO THE FILES OF THE A.O FOR THE REASON THAT THE OUTCOME OF THE ISSUES RAISED IN THE APPEA L VIDE ITA NO. 294/PN/2009 (SUPRA) HAS A BEARING ON ALL THESE THREE APPEALS. AFTER H EARING BOTH THE PARTIES WE FIND MERIT IN THE ARGUMENTS OF THE COUNSEL. ACCORDINGLY THE G ROUNDS RAISED IN ALL THESE THREE APPEALS ARE ALSO SET ASIDE. 11. IN THE RESULT ALL APPEALS OF ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF AUGUST 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 20 TH AUGUST 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE ITA NO 294/PN/2009 983/PN/08 ETC.SHRI SANDEEP SUGANDHILAL BORA & SUHAS SUGANDHILAL BORA E TC. A.Y. 1999-00 2003-04 ETC. PAGE OF 5 5 2. THE DEPARTMENT 3. THE CIT CENTRAL CIR. PUNE 4. THE CIT(A)-II PUNE 4. THE D.R. A BENCH PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE