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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: Ms. MADHUMITA ROY & SHRI BHAGIRATH MAL BIYANI
The instant appeal filed by the assessee is directed against the order dated 20.10.2016 passed by the Commissioner of Income Tax (Appeals), Gandhinagar, Ahmedabad arising out of the order dated 31.12.2015 passed by the ITO, Ward-2, Patan under Section 144 r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for A.Y. 2008-09.
The assessee has come up in appeal challenging the assessment proceeding initiated by the Ld. AO under Section 147 of the Act. By way of revised grounds of appeal he has further challenged the approval of Additional CIT under Section 151 of the Act. The very jurisdiction of the Ld. AO to initiate the re-assessment proceeding has been challenged.
Pravinbhai Manilal Patel vs. ITO Asst.Year –2008-09 - 2 - 3. At the time of hearing of the instant appeal it was submitted by the Ld. Counsel appearing for the assessee that the re-opening under Section 147 was finalized ex-parte. Certain addition evidences have also been filed by the assessee before us which were failed to be submitted before the authorities below. According to him the re-assessment was finalized ex-parte which was further been confirmed by the Ld. CIT(A). Under these circumstances he prays for another opportunity of hearing and to set-aside the issue to the file of the Ld. AO for adjudication of the issue afresh.
The above submission made by the Ld. Counsel for the assessee has not been controverted by the Ld. DR.
Upon perusal of the records it appears that before the Ld. AO the assessee did not cooperate in finalizing the issue; no evidence and/or explanation was offered by the assessee in support of his case and ultimately the assessment was finalized under Section 144 r.w.s. 147 of the Act. It was further been confirmed by the First Appellate Authority in the absence of any documentary evidence submitted by the appellant therein.
We have perused the Paper Book filed containing the additional evidences. The inability of the assessee in submitting the evidences before the authorities below has been explained by the assessee to this effect that no document was asked for by the appointed Chartered Accountant of the assessee so as to get the matter heard by the authorities below in its proper perspective. Thus, we find some communication gap between the assessee and the Chartered Accountant appointed by him which to certain extent seems to be genuine. Hence, we admit those additional evidences filed before us.
Pravinbhai Manilal Patel vs. ITO Asst.Year –2008-09 - 3 -
It is also a fact that the authorities below could not adjudicate the issue in the absence of proper assistance rendered by the assessee by filing written submissions and relevant evidences in support of his case. Moreso, the maintainability of the proceeding under Section 147 is also under challenge before us. Thus, under this present facts and circumstances of the case we find it fit to grant a further opportunity of being heard to the assessee. We, therefore, set-aside the issue to the file of the Ld. AO who adjudicate the matter upon granting an opportunity of being heard to the assessee and upon considering the evidences on record and the evidences which the assessee may choose to file at the time of hearing of the matter. We make it clear that the point of maintainability is being kept open for adjudication by the Ld. AO. Hence, the assessee’s appeal is allowed for statistical purposes.