SUDHIR SAINI, Jaipur V. ACIT, Jaipur

ITA 1001/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5137 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH JCIT DHK
• Keywords: Principle of natural justice; Condonation of delay
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 1001/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06. SHRI SUDHIR SAINI, PROP. M/S. SHIV SHAKTI TEXTILE, E-12, BAL NAGAR, GONER ROAD, JAIPUR. CUKE VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ALDPS 4461 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUKESH KHANDELWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (ADDL. JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 08.07.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 11/07/2016. VKNS'K@ ORDER PER SHRI KUL BHART, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS), CENTRAL, JAIPUR DATED 10.09.2013 PERTAINING TO ASSE SSMENT YEAR 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT (A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN DECIDING THE APPEAL EX-PARTE WITHOUT APPRECIATING THE FACTS OF THE CASE IN AS MU CH AS NO NOTICE OF HEARING APPEAL WAS NEITHER SERVED ON THE ASSESSE E NOR HIS AUTHORIZED REPRESENTATIVE. 2. THAT LD. CIT (A) HAS WRONG, UNJUST AND ERRED IN LAW IN NOT ACCEPTING THE FACT THAT PROCEEDINGS INITIATED U/S 148 AND CON SEQUENT ASSESSMENT MADE U/S 148/144(1) OF THE I.T. ACT, 196 1 IS WRONG AND BAD IN LAW AS NO NOTICE U/S 148 WAS SERVED ON A SSESSEE OR HIS AUTHORIZED REPRESENTATIVE WITHIN THE STATUTORY TIME LIMIT. 3. THAT WITHOUT PREJUDICE TO THE GROUND NO. (1) & (2) ABOVE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIRMING ASSESSMEN T OF THE 2 ITA NO. 1001/JP/2013 SHRI SUDHIR SAINI VS. ACIT APPELLANT AT RS. 61,72,640/- AS ASSESSED BY THE ASS ESSING OFFICER ON ACCOUNT OF ALLEGED UNDISCLOSED BUSINESS PROFIT OF R S. 47,40,000/- AND ADDITION OF RS. 13,80,000/- ON ACCOUNT OF ALLEG ED UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT OF THE APPELLANT. 2. THE APPEAL FILED IS BARRED BY 16 DAYS. THE ASSE SSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY AND IN SUPPORT OF THE APPLICAT ION, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE APPLICATION. IN SUPPORT OF THE AVERMENT MADE IN THE APPLICATION, AFFIDAVIT DATED 2 0 TH DECEMBER, 2013 IS FILED. THE LD. D/R HAS OPPOSED THE SUBMISSIONS. 2.1. AFTER CONSIDERING THE SUBMISSIONS, WE DEEM IT PROPER TO CONDONE THE DELAY. ACCORDINGLY THE APPEAL IS TAKEN UP FOR HEARING. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT (A) HAS PASSED THE ORDER IN THE ABSENCE OF THE ASSESSEE AS THE ASSESSEE COULD NOT REMAIN PRESENT BEFORE THE LD. CIT (A). THE LD. COU NSEL SUBMITTED THAT NON APPEARANCE WAS NOT DELIBERATE BUT OWING TO UNAVOIDA BLE CIRCUMSTANCES. UNDER THE FACTS OF THE PRESENT CASE, THE ASSESSEE OUGHT TO HA VE BEEN GIVEN OPPORTUNITY OF HEARING. 3.1. ON THE CONTRARY, THE LD. D/R HAS OPPOSED THE S UBMISSIONS AND SUBMITTED THAT THE ASSESSEE WAS NEGLIGENT AND FAILED TO COMPLY WIT H THE NOTICES ISSUED BY LD. CIT (A) FOR HEARING. 3.2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIALS AVAILABLE ON RECORD. WE FIND THAT LD. CIT (A) IN PARA 4 OF HIS ORDER HAS OBSERVED THAT THE APPEAL BEFORE HIM WAS FILED ON 11.03.2013. THE CASE OF TH E ASSESSEE WAS FIXED FOR HEARING VIDE NOTICE DATED 23.08.2013 ON 04.09.2013. ANOTHER NOTICE WAS ALSO ISSUED ON 27.08.2013 FIXING THE HEARING ON 09.09.2013. ON BO TH THE DATES, ASSESSEE DID NOT 3 ITA NO. 1001/JP/2013 SHRI SUDHIR SAINI VS. ACIT APPEAR BEFORE THE LD. CIT (A). THE LD. CIT (A) OBS ERVED THAT EVEN BEFORE THE AO THE ASSESSEE HAS FAILED TO MAKE APPEARANCE. THE LD. CO UNSEL FOR THE ASSESSEE, DURING THE COURSE OF HEARING, SUBMITTED THAT THE ASSESSEE UNDERTAKES TO APPEAR BEFORE LD. CIT (A) AS AND WHEN THE DATE IS FIXED FOR HEARING. IT IS CONTENDED BY THE LD. COUNSEL THAT NON-GRANTING OF SUFFICIENT OPPORTUNITY HAS RES ULTED IN MISCARRIAGE OF JUSTICE TO THE ASSESSEE. WE HAVE GIVEN OUR THOUGHTFUL CONSIDE RATION TO THE FACT AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS ADVANCED BY THE RESPECTIVE PARTIES. FROM THE RECORD, IT IS EVIDENT THAT THE ASSESSEE HA S BEEN REMAINING ABSENT ON THE DATES FIXED FOR HEARING BEFORE THE LOWER AUTHORITIE S. HOWEVER, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE CONSID ERED OPINION THAT THE ASSESSEE BE GIVEN FURTHER OPPORTUNITY FOR REPRESENTING HIS CASE . THE CONDUCT OF THE ASSESSEE FOR NON-COMPLIANCE OF THE NOTICES IS HIGHLY DEPRECATED. ACCORDINGLY, WE SET ASIDE THE ORDER LD. CIT (A) SUBJECT TO THE CONDITION THAT COS T OF RS. 2,000/- TO BE DEPOSITED BY THE ASSESSEE AS PER RULES AND FURTHER IT IS DIRECTE D THAT THE ASSESSEE WOULD NOT SEEK ANY ADJOURNMENT AND WOULD APPEAR BEFORE LD. CIT (A) SUO MOTO AFTER TAKING COPY OF THIS ORDER FROM THE REGISTRY OF THE TRIBUNAL. THE LD. CIT (A) WOULD CONSIDER THE SUBMISSIONS OF THE ASSESSEE AND DECIDE THE APPEAL A FRESH ON MERIT. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11/07/2016 . SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 11/07/2016. DAS/ 4 ITA NO. 1001/JP/2013 SHRI SUDHIR SAINI VS. ACIT VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI SUDHIR SAINI, JAIPUR. 2. THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-3, JAIP UR. 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1001/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR