SHRI MANOJ KUMAR LOHIYA, SIKAR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, SIKAR

ITA 06/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8617 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 02-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Depreciation; Opportunity of being heard; Assessment record
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 06/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 SH. MANOJ KUMAR LOHIYA NEAR RAJ. HOUSING BOARD SIKAR RAJ. 332001 CUKE VS. ACIT, CIRCLE SIKAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABJPL5887A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/08/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 02/09/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST EX- PARTE ORDER OF LD. CIT(A)-4, JAIPUR DATED 22.11.2018 WHEREIN THE ASSES SEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED ASSESSMENT ORDER U/S 143(3) DATED 30.12.2016 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JU RISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUAS HED. 2. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN PASSING THE EXPARTY ORDER WITHOUT PROVI DING THE ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE IN THE GROSS BREACH OF LAW. HENCE THE ENTIRE ADDITION AND DISALL OWANCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. ITA NO. 06/JP/2019 SH. MANOJ KUMAR LO HIYA, SIKAR VS. ACIT, SIKAR 2 3.1 RS. 5,00,000/-: THE LD. AO HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN INVOKING THE PROVISION OF SECTION 145(3). THE PROVISION SO INVOKED BY THE LD. AO AND CONFIRMED BY THE LD. CIT(A) BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE QUASHED. 3.2 ALTERNATIVELY AND WITHOUT PREJUDICE THE LD. AO FURTHER ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN MAKING LUMP SUM TRADING ADDITION OF RS. 5,00,000/-. HENCE THE ADDITION SO MADE BY TH E LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRA RY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY M AY KINDLY BE DELETED IN FULL. 4. RS. 21,41,000/-: THE LD. CIT(A) HAS GROSSLY ERRE D IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOW ANCE OF RS. 21,41,000/- CLAIMED ON ACCOUNT OF COMMISSION EXPENSES. HENCE TH E DISALLOWANCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 5. RS. 2,00,000/-: THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOW ANCE OF RS. 2,00,000/- OUT OF VARIOUS EXPENSES, AS BUSINESS PROMOTION, CON VEYANCE, OFFICE, SHORT & EXCESS EXP., STAFF WELFARE, SOFTWARE, TOURS AND TRAVELLING, TELEPHONE, PETROL & CONVEYANCE, INSURANCE, INTEREST ON CAR LOAN, ALSO WITH RESPECT TO DEPRECIATION ON CAR. HENCE THE DISA LLOWANCE SO MADE BY THE LD. AO AND SUSTAINED BY THE LD. CIT(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 6. THE LD. AO HAS GROSSLY ERRED IN LAW AS WELL AS O N THE FACTS OF THE CASE IN CHARGING INTEREST U/S 234 A,B,C AND D AS AL SO WITHDRAWING INTEREST U/S 244A. THE APPELLANT TOTALLY DENIES IT LIABILITY OF CHARGING OF ITA NO. 06/JP/2019 SH. MANOJ KUMAR LO HIYA, SIKAR VS. ACIT, SIKAR 3 ANY SUCH INTEREST. THE INTEREST, SO CHARGED, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED IN FULL. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT IN THIS CASE THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) AT THE TOT AL INCOME OF RS.51,92,900/- BY MAKING THE ADDITIONS OF RS.28,41, 000/- ON ACCOUNT OF VARIOUS ADDITIONS AGAINST WHICH THE ASSESSEE HAS P REFERRED THE APPEAL BEFORE THE LD. CIT(A)-3. THE MATTER WAS FIRST FIXED ON 23.03.2018 BEFORE THE LD. CIT(A)-3 AND THE A/R SOUGHT THE TIME AS HE WAS RECENTLY ENGAGED. AND IN THE MONTH OF SEP. 2018, THE APPEAL WAS TRANSFERRED TO CIT(A)-4, JAIPUR. THEREAFTER THE CIT(A) HAS FIXED T HE MATTER FOR HEARING ON 22.10.2018 AND THE A/R SOUGHT TIME ON THE GENUIN E REASON AS THE LOCAL COUNSEL OF THE ASSESSEE WAS NOT BELONGING TO JAIPUR AND WAS BUSY IN SOME PROFESSIONAL WORK BEING THE TIME BARRING MA TTERS AND THE CASE WAS ADJOURNED TO 15.11.2018. HOWEVER THE A/R HAS RE CEIVED THE PAPERS IN THE MONTH OF OCT. 18 BUT UNFORTUNATELY, THE BUND LE OF PAPERS OF THE ASSESSEE WERE MISPLACED BY THE STAFF OF THE A/R DUR ING THE DEEPAWALI CLEANING OF THE OFFICE. HENCE THE UNDERSIGNED A/R O F THE ASSESSEE HAS APPEARED BEFORE THE LD. CIT(A) ON 15.11.2018 WITH T HE ADJOURNMENT APPLICATION AND SOUGHT SOME TIME UNDER THE CIRCUMST ANCES. THE ID. CIT(A) HAS ASKED THE UNDERSIGNED A/R TO FILE THE AD JOURNMENT APPLICATION AT THE DAK COUNTER WHICH WAS DULY FILED. IT WAS SUB MITTED THAT THE ID. CIT(A) HAS NOT REJECTED THE ADJOURMENT APPLICATION AT THAT TIME AND WHEN THE A/R HAS ASKED FOR NEXT DATE THEN HE HAS REPLIED THAT THE SAME SHALL BE INTIMATED. THUS THE UNDERSIGNED WAS UNDER THE IM PRESSION THAT FRESH NOTICE FIXING THE NEXT HEARING DATE SHALL BE COMMUNICATED, HOWEVER, SURPRISINGLY THE ID. CIT(A) HAS PASSED THE EX-PARTE ORDER BY KEEPING THE A/R AND ASSESSEE IN DARK. AND IN THE OR DER AT FIRST PAGE HE HAS MENTIONED 'NONE' IN FRONT OF PRESENT FOR THE AP PELLANT WHEN THE ITA NO. 06/JP/2019 SH. MANOJ KUMAR LO HIYA, SIKAR VS. ACIT, SIKAR 4 UNDERSIGNED HAD APPEARED WITH THE ADJOURNMENT APPLI CATION. HENCE THIS ACTION OF THE ID. CIT(A) IS AGAINST THE PRINCI PLE OF LAW. HENCE THE ORDER OF THE ID. CIT(A) AND THE ENTIRE ADDITIONS ON THESE FACTS AND CIRCUMSTANCES LIABLE TO BE QUASHED AND DELETED. ALT ERNATIVELY AND WITHOUT PREJUDICE TO THE ABOVE, IT WAS SUBMITTED TH AT THE ID. CIT(A) HAS NOT DECIDED THE CASE ON MERIT HE HAS SIMPLY DIS MISSED THE APPEAL WITHOUT GIVING ANY REASONING AND ADJUDICATING THE G ROUNDS OF APPEAL. AND HE COULD HAVE CALLED THE ASSESSMENT RECORD AND COULD HAVE DECIDED THE MATTER. HENCE THE MATTER MAY KINDLY BE RESTORED TO THE ID. CIT(A) FOR DECIDING THE SAME AFRESH. 3. THE LD DR IS HEARD WHO HAS RELIED ON THE FINDING S OF THE LOWER AUTHORITIES. IT WAS SUBMITTED THAT THE MATTER WAS L ISTED FOR HEARING ON COUPLE OF OCCASIONS AND AS THE ASSESSEE WAS NOT INTERESTED IN PURSUING ITS APPEAL, THE LD CIT(A) WAS LEFT WITH NO OPTION BUT TO PASS THE E X-PARTE ORDER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THOUGH THE MATTER HAS BEEN FIXED FOR HEARING ON COUPLE OF OCCASIONS, HOWEVER, THERE HAVE BEEN NO SU BSTANTIVE HEARING DUE TO CHANGE OF JURISDICTION OF THE LD CIT(A) AND THE ASS ESSEE MOVING ADJOURNMENT APPLICATIONS FROM TIME TO TIME. IN THE INTEREST OF JUSTICE AND FAIR PLAY AND ESPECIALLY, GIVEN THAT THE MATTER HAS NOT BEEN DECI DED ON MERITS, WE BELIEVE THAT THE ASSESSEE DESERVE ONE MORE OPPORTUNITY AND THE MATTER IS SET-ASIDE TO THE FILE OF THE LD CIT(A) TO DECIDE THE SAME ON MER ITS AFTER REASONABLE OPPORTUNITY TO THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE SHALL APPEAR BEFORE THE LD CIT(A) AND IS AT LIBERTY TO SUBMIT ITS CONTE NTIONS ON MERITS WHICH SHALL BE CONSIDERED BY THE LD CIT(A) AS PER LAW. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ITA NO. 06/JP/2019 SH. MANOJ KUMAR LO HIYA, SIKAR VS. ACIT, SIKAR 5 ORDER PRONOUNCED IN THE OPEN COURT ON 02/09/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/09/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. MANOJ KUMAR LOHIYA, SIKAR 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE SIKAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 06/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR