Sh. Pankaj Kumar Sharma, Baghpat V. ITO, Baghpat

CO 291/DEL/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6399 (ITAT-DELHI)
• Duration Of Justice: 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 18-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 08-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P SAPRA
• Assessee Lawyers: ANUSHA KHURANA
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 3163/DEL/2011 ASSESSMENT YEAR: 2007-08 ITO, VS. PANKAJ KUMAR SHARMA, BHAGWAN MAHAVIR MARG, S/O SH. DEV DUTT SHARMA, BARAUT, PROP. M/S BHAGWATI TEXTILES, BAGHPAT. JAIN COLLEGE ROAD, KHEKRA, BAGHPAT. AJBPS7893K (APPELLANT) (RESPONDENT) & CROSS OBJECTION NO. 291/DEL/2011 (IN ITA NO. 3163/DEL/2011) ASSESSMENT YEAR: 2007-08 PANKAJ KUMAR SHARMA, VS. ITO, S/O SH. DEV DUTT SHARMA, BHAGWAN MAHARVIR MARG, PROP. M/S BHAGWATI TEXTILES, BARAUT, BAGHPAT. JAIN COLLEGE ROAD, KHEKRA, BAGHPAT. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. ANUSHA KHURANA, SR. DR RESPONDENT BY : O.P. SAPRA, ADV. ORDER PER BENCH : THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 13.4.2011 PASSED BY LD. CIT(A), WHEREBY THE LD. CIT (A) ITA NO. 3163/D/2011 & CO NO. 291/D/2011 2 RECALLED HIS EARLIER ORDER DATED 17.1.2011, PERTAIN ING TO THE A.Y. 2007-08. 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION IN R ELATION THERETO. 3. THE GROUNDS OF APPEAL RAISED BY REVENUE ARE AS U NDER: - 1. WHETHER THE LD. CIT(APPEALS) HAS ERRED IN LAW AND FACTS IN RECALLING ITS ORDER IGNORING THE PROVISIONS OF THE STATUTE WHEREIN THE CIT(APPEALS) DOES NOT HAVE THE POWER TO RECALL ITS OWN ORDER AND FURTHER IGNORING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KANPUR COAL SYNDICATE 53 ITR 225 (SC). 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(APPEALS) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 4. WE HAVE HARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD. 5. IN THIS CASE, THE ASSESSEE FILED AN APPEAL BEFOR E THE LD. CIT(A) AGAINST THE ASSESSMENT ORDER U/S 143(3) OF T HE ACT DATED 4.12.2009 PASSED BY THE AO. THIS APPEAL WAS INSTITUTED ON 1.2.2010. THE LD. CIT(A) DISPOSED OF F THIS APPEAL ITA NO. 3163/D/2011 & CO NO. 291/D/2011 3 VIDE HIS ORDER DATED 17.1.2011 BY OBSERVING AND HOL DING AS UNDER: - 1. THIS APPEAL HAS BEEN INSTITUTED AGAINST THE ORDER OF THE ITO, BARAUT DATED 4.12.2009 U/S 143(3) OF THE INCOME TAX ACT, 1961. 2. NOTICES FOR HEARING WERE SENT, THE DETAILS OF WHICH ARE AS PER RECORDS: SL. NO. DATE OF ISSUE DATE OF REMARKS OF NOTICE COMPLIANCE 1. 24.11.2010 14.12.2010 ADJOURNMENT SOUGHT BY ONE SH. H.K. JAIN, ADV. FIXED FOR 27.12.10. 2. 27.12.2010 ADJOURNMENT SOUGHT BY SH. H.K. JAIN, ADV. ADJOURNED FOR 14.1.2011. 3. 14.1.2011 NO COMPLIANCE 3. IT IS ALSO TO BE NOTED THAT ADJOURNMENTS HAVE BEEN PURPORTEDLY SOUGHT BY ONE SH. H.K. JAIN, ADVOCATE WHOSE VAKALATNAMA IS NOT PLACED ON RECORD. THE APPEAL CANNOT BE KEPT PENDING FOR AN INDEFINITE PERIOD. AS THERE IS NO COMPLIANCE BY THE APPELLANT, THE APPEAL IS DECIDED ON THE BASIS OF MATERIAL ON RECORD. 4. ALTOGETHER EIGHT GROUNDS OF APPEAL HAVE BEEN RAISED WHICH ARE AGAINST THE ADDITION OF RS. 51,95,720/- BEING HELD AS FICTITIOUS PURCHASES BY THE AO. NO WORTHWHILE FACTS ARE MENTIONED IN THE ITA NO. 3163/D/2011 & CO NO. 291/D/2011 4 GROUND OF APPEAL WHICH WOULD LEAD ME TO UNDERSTAND THE GRIEVANCE OF THE APPELLANT. THE AO, ON THE OTHER HAND, HAS REACHED HIS INFERENCE AFTER THOROUGH ENQUIRIES. EVEN THOUGH I AM NOT REQUIRED TO GIVE SEPARATE REASONS FOR AFFIRMING THE ORDER OF THE AO AS PER THE RATIO OF THE JUDGMENT OF THE CASE OF ANIL GOEL VS. CIT(APPEALS) & ANOTHER [2008], 306 ITR 212 (P&H), I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER WHICH HAS BEEN PASSED WITH DUE APPLICATION OF MIND. THE AOS ORDER IS, THEREFORE, CONFIRMED. 5. IN THE RESULT, THE APPEAL IS DISMISSED. 6. FROM THE SAID ORDER DATED 17.1.2011 PASSED BY LD . CIT(A), IT IS FOUND THAT THIS APPEAL WAS DISMISSED BY LD. CIT(A) AFTER CONSIDERING THE ISSUE ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. THEREAFTER, THE ASSESSEE MADE AN APPLIC ATION ON 9.3.2011 PRAYING FOR RECALLING THE SAID ORDER BY GI VING THE FOLLOWING REASONS: - I) THE APPEAL WAS FIXED TWICE AND ADJOURNMENTS WERE SOUGHT ON BOTH THE OCCASIONS. SINCE ON THE LAST ADJOURNED DATE, NO COMPLIANCE WAS MADE, THE APPEAL WAS DISMISSED. THUS, ONLY ONE OCCASION AROSE OF NON-COMPLIANCE ON ITA NO. 3163/D/2011 & CO NO. 291/D/2011 5 WHICH THE ASSESSEES COUNSEL FAILED TO APPEAR. II) THE ASSESSEE RESIDES AND OPERATES FROM A SMALL TOWN, NAMELY KHEKRA AND DOES NOT HAVE THE SERVICES OF PAID STAFF. THERE WAS NO FAULT ON THE PART OF THE APPELLANT FOR NON-PROSECUTION OF APPEAL AS HE WAS SOLELY DEPENDENT UPON HIS COUNSEL. III) AS THE APPEAL WAS NOT REPRESENTED, THERE WAS NO OCCASION TO APPRAISE THE FACTS OF THE CASE. DISMISSAL OF APPEAL WITHOUT GOING INTO MERITS WAS A DENIAL OF PRINCIPLES OF NATURAL JUSTICE. IV) THE APPELLANT HAS APPOINTED A NEW COUNSEL AND A COPY OF POWER OF ATTORNEY HAS BEEN ENCLOSED. 7. IN PURSUANCE TO THE AFORESAID APPLICATION FILED ON 9.3.2011, THE LD. CIT(A) RECALLED ITS ORDER DATED 1 7.1.2011 BY OBSERVING AS UNDER: - 3. CONSIDERING THE FACTS OF THE CASE, THE APPELLATE ORDER DATED 17.1.2011 IN THE SAID APPEAL NO. 438/09-10 IS RECALLED. THE APPELLANT WILL NOT SEEK ADJOURNMENT WHEN THE RECALLED PROCEEDINGS ARE TAKEN UP. ITA NO. 3163/D/2011 & CO NO. 291/D/2011 6 8. HENCE, THE REVENUE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. 10. ON PERUSAL OF LD. CIT(A)S ORDER DATED 17.1.201 1, WE FIND THAT HE DECIDED THE APPEAL ON THE BASIS OF MATERIAL ON RECORD AS THERE WAS NO COMPLIANCE BY THE ASSESSEE ON THE D ATE FIXED. THE ASSESSEE HAS NOT FILED ANY APPEAL BEFOR E THE TRIBUNAL AGAINST THE AFORESAID ORDER DATED 17.1.201 1 PASSED BY LD. CIT(A). INSTEAD, THE ASSESSEE FILED AN APPL ICATION BEFORE THE LD. CIT(A) PRAYING FOR RECALLING HIS ORD ER. IN THE COURSE OF HEARING, OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY PROVISI ONS OF LAW CONTAINED IN THE INCOME TAX ACT EMPOWERING THE CIT( A) TO RECALL HIS ORDER IN THE MANNER IN WHICH THE LD. CIT (A) HAS DONE IN THE PRESENT CASE. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE DECISION OF HONBLE AL LAHABAD HIGH COURT IN THE CASE OF GOPI KRISHNA AGGARWAL VS. UNION OF INDIA DECIDED ON 17 TH OCTOBER, 1989, WHICH WAS RENDERED UNDER THE PROVISIONS OF EXCISE ACT/CUSTOMS ACT. FR OM THAT DECISION, IT IS NOT CLEAR WHETHER THE FIRST APPELLA TE AUTHORITY HAS ANY ANCILLARY AND INCIDENTAL POWER TO RECALL HIS OR DER IF IT IS ITA NO. 3163/D/2011 & CO NO. 291/D/2011 7 SATISFIED THAT THE ABSENCE WAS FOR THE REASON BEYON D THE CONTROL OF THE ASSESSEE. WE, THEREFORE, HOLD THAT THIS DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. SINCE, THE LD. CIT(A) HAS NO POWER PROVIDED UNDER THE ACT TO R ECALL HIS ORDER PASSED IN RESPECT OF AN APPEAL FILED BEFORE H IM, WE HOLD THAT THE LD. CIT(A) HAS ERRED IN RECALLING HIS ORDE R DATED 17.1.2011 BY PASSING THE IMPUGNED ORDER DATED 13.4. 2011. WE, THEREFORE, SET ASIDE HIS ORDER DATED 13.4.2011 AND ALLOW THE APPEAL FILED BY THE REVENUE. 11. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION TAK ING THE FOLLOWING GROUNDS: - 1. THAT THE GROUND OF APPEAL TAKEN BY THE REVENUE IS MIS-CONCEIVED BECAUSE THE LD. CIT(A) WAS JUSTIFIED IN RECALLING HIS EX PARTE ORDER DATED 17.1.2011 IN VIEW OF JURISDICTIONAL ALLAHABAD HIGH COURT IN THE CASE OF GOPI KRISHAN AGARWAL VS. UOI. 2. EVEN SUPREME COURT JUDGMENT IN 53 ITR 225 QUOTED BY THE REVENUE IN GROUND NO. 1 IS IN FAVOUR OF THE ASSESSEE. 3. REVENUES APPEAL DESERVES TO BE DISMISSED. 4. IN ANY CASE THE LD. CIT(A) DID NOT DISPOSE THE APPEAL AFTER CONSIDERING THE MERITS THEREOF AND THEREFORE IN CASE HE WAS NOT COMPETENT TO RECALL HIS ORDER, THE HONBLE ITAT MAY KINDLY BE ITA NO. 3163/D/2011 & CO NO. 291/D/2011 8 PLEASED TO DIRECT THE LD. CIT(A) TO DISPOSE OFF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT. 12. GROUND NOS. 1 TO 3 ARE MERELY IN SUPPORT OF LD. CIT(A)S ORDER RECALLING HIS EARLIER ORDER AND IN THE LIGHT OF OUR DISCUSSION IN THE REVENUES APPEAL, THESE GROUNDS A RE NOT MAINTAINABLE IN THE CROSS OBJECTION. THE ASSESSEE HAS ALSO TAKEN A GROUND THAT IN CASE IT IS FOUND THAT THE LD . CIT(A) WAS NOT COMPETENT TO RECALL HIS ORDER, THE TRIBUNAL MAY KINDLY BE PLEASED TO DIRECT THE LD. CIT(A) TO DISPOSE OFF THE APPEAL ON MERITS AFTER HEARING THE ASSESSEE. THIS GRIEVANCE OF THE ASSESSEE CAN BE CONSIDERED ONLY IN AN APPEAL FILED AGAINST THE CIT(A)S EARLIER ORDER DATED 17.1.2011, WHERE T HE LD. CIT(A) DISPOSED OFF THE ASSESSEES APPEAL EX PARTE ON THE BASIS OF MATERIAL ON RECORD. THE ASSESSEE SHALL BE AT LIBERTY TO TAKE THIS GROUND IN AN APPEAL, IF ANY, FILED AGA INST THE ORDER DATED 17.1.2011 PASSED BY LD. CIT(A). THUS, THIS G ROUND RAISED BY THE ASSESSEE IS REJECTED AS NOT MAINTAINA BLE IN THIS APPEAL FILED AGAINST THE ORDER OF THE LD. CIT(A) DA TED 13.4.2011. 13. BEFORE PARTING WITH THE APPEAL, WE MAY OBSERVE THAT AGAINST THE ORDER DATED 17.1.2011 PASSED BY LD. CIT (A), THE ITA NO. 3163/D/2011 & CO NO. 291/D/2011 9 ASSESSEE HAD A REMEDY TO FILE AN APPEAL BEFORE THE TRIBUNAL TAKING A GROUND THAT ABSENCE OF THE ASSESSEE BEFORE LD. CIT(A) WAS BEYOND HIS CONTROL OR OTHERWISE THE ORDE R PASSED BY LD. CIT(A) WAS NOT JUSTIFIED ON MERIT. BUT, INS TEAD OF FILING THE APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE MADE A BONAFIDE APPLICATION ON 9.3.2011 BEFORE THE LD. CIT(A) PRAYI NG FOR RECALLING HIS ORDER DATED 17.1.2011 AND THAT APPLIC ATION FILED BY THE ASSESSEE HAS BEEN ALLOWED BY THE LD. CIT(A). IN THE LIGHT OF THESE FACTS, THE ASSESSEE SHALL BE AT LIBE RTY TO FILE AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER DATED 17.1.2011 WITH A REQUEST TO CONDONE THE DELAY IN FILING THE A PPEAL, IF ASSESSEE IS SO ADVISED. WE OBSERVE ACCORDINGLY. 14. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED AND THE CROSS OBJECTION BY THE ASSESSEE IS DISMISSE D. 15. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON 18.8.2011 AFTER HEARING WAS OVER. SD/- SD/- (SHAMIM YAHYA) (C. L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18.8.11 *KAVITA ITA NO. 3163/D/2011 & CO NO. 291/D/2011 10 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR