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 Attachment on Cash Credit of Assessee under GST Act: Delhi HC directs Bank to Comply Instructions to Vacate

Shri Rameshbhai Valjibhai Kothari A-2, Prasam Apartment Nr. Karmacharinagar Ghatlodia vs. ITO, Ward-4(2)(4) Ahmedabad.
May, 08th 2019

Subject: Though the assessee has taken four grounds of appeal, but his grievance revolves around

Referred Sections:
Subsection (6)
Section 250 of the Act

             ,   -  
                       AHMEDABAD ­ BENCH `SMC'


                     ./ ITA No. 550/Ahd/2017
                    /Assessment Year: 2012-13
      Shri Rameshbhai Valjibhai Kothari    ITO, Ward-4(2)(4)
      A-2, Prasam Apartment             Vs Ahmedabad.
      Nr. Karmacharinagar
      Ahmedabad 380 061.
      PAN : AFEPK 0738 A

           / (Appellant)                          / (Respondent)
             Assessee by :           Shri Mehul K. Patel, DR
             Revenue by :            Shri B.L. Meena, Sr.DR

         / Date of Hearing                   :    02/05/2019
         /Date of Pronouncement :                  07/05/2019

       Assessee is in appeal before the Tribunal against order of the
ld.CIT(A)-4, Ahmedabad dated 1.12.2016 passed for the Asstt.Year 2012-

2.     Though the assessee has taken four grounds of appeal, but his
grievance revolves around a single issue viz. the ld.CIT(A) has erred in
dismissing the appeal of the assessee ex parte without considering the
issues on merit.

3.     With the assistance of the ld.representatives, I have gone through
the record carefully. It emerges out from the record that the ld.CIT(A)
has granted nine opportunities to the assessee for prosecuting his
appeal. Thereafter, the ld.CIT(A) has reproduced assessment order from
                                                               ITA No.550/Ahd/2017

para 4 in page no.4 upto page no.13. Decision of the ld.CIT(A) is in
paragraph-5 reads as under;

     5. The grounds of appeal filed by the appellant and the assessment order
     have been considered carefully. The A.O. made the following additions to
     the returned income:

      Sr.    Particulars                                            Amount
      1.     Undisclosed STCG from Hanspura(1 2,394)                Rs.11,77,425/

      2.     Undisclosed STCG Hanspura(4,025)                       Rs.2,21,436/-

      3.     Unexplained Investment in Land at Muthiya(1            Rs.1,28,400/-

      4.     Unexplained investment in Land at Muthiya(22,257) Rs.1,10,000/-

      5.     Unexplained cash credit by the way of Gift             Rs.20,73,417/

      6.     Unexplained cash credit by the cash deposit in bank    Rs.52,000/-

     The reasons for making these additions have been carefully gone through.
     The A.O. has mentioned the reasons for making these additions in detail.
     The appellant was given sufficient opportunity of being heard. In spite of
     all the opportunities given during the assessment proceedings and the
     appellate proceedings, the appellant could not submit any explanation
     against the additions made. In such situation, the additions made by the
     A.O., as mentioned above are confirmed. The appeal is dismissed.

4.   Subsection (6) of section 250 of the Act contemplates that the
ld.CIT(A) shall state the point of dispute and thereafter record reasons in
support of his conclusion on those points. A perusal of the above order
would indicate that the ld.CIT(A) failed to follow the above mandate
                                                              ITA No.550/Ahd/2017

and dismissed the appeal in summary manner. However, it is equally
important to note that the assessee did not respond to the notices given
by the ld.CIT(A) on nine occasions. It suggest careless attitude at the
end of the assessee.     If this careless attitude is being pitted with
punishment in the shape of tax liability on the addition confirmed by the
ld.CIT(A), then it would reveal that punishment is disproportionate to
the negligence. The ld.CIT(A) should have called for assessment record
and also perused the explanation given by the assessee before the AO
instead of verbatim reproducing the assessment order in the impugned
order. Considering negligence of the assessee and in the interest of
justice, we set aside the order of the ld.CIT(A) subject to payment of cost
of Rs.5,000/- (Five Thousand) by the assessee. The ld.CIT(A) shall re-
adjudicate all the issues and the assessee is directed to cooperate with
the CIT(A) by submitting necessary details.

5.   In the result, appeal of the assessee is allowed for statistical purpose.
     Pronounced in the Open Court on 7th May, 2019.

                                                      (RAJPAL YADAV)
                                                      JUDICIAL MEMBER
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