M/s. Sarvodaya Shramik Kalyan Samiti, Sehore V. The ACIT, Bhopal

ITA 109/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2865 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-03-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 02-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: ARYA BHATT
• Keywords: Opportunity of being heard
• Section: 143(3); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC-I BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.109/IND/2010 A.Y. 2005-06 SARVODAYA SHRAMIK KALYAN SAMITI SEHORE PAN AABAS-9987 APPELLANT VS ASSTT.COMMISSIONER OF INCOME TAX 2(1), BHOPAL RESPONDENT APPELLANT BY : SHRI ARYA BHATT, ADVOCATE RESPONDENT BY : SHRI P.K. MITRA, SR.DR O R D E R THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DATED 16.11.2009 ON THE GROUND THAT THE ASSESSMENT ORDER FRAMED U/S 144 FOR THE NET PROFIT AT THE RATE OF 8% OF GROSS TURNOVER AND CONF IRMATION OF THE SAME BY THE LD. FIRST APPELLATE AUTHORITY IS WITHOUT ANY JU STIFICATION AND ALSO WITHOUT PROVIDING ANY DUE OPPORTUNITY TO THE ASSESSEE. 2. DURING HEARING OF THIS APPEAL, I HAVE HEARD SHRI ARYA BHATT, LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. MITRA, LEARN ED SENIOR DEPARTMENTAL REPRESENTATIVE. THE CRUX OF ARGUMENTS ON BEHALF OF THE 2 ASSESSEE IS THAT AS PER THE DRAFT ASSESSMENT ORDER DATED 30.11.2007, THERE IS A FINDING THAT THE ASSESSEE NEVER TURNED U P, THEREFORE, THE ASSESSING OFFICER HAD NO ALTERNATIVE BUT TO COMPLET E THE ASSESSMENT U/S 144 OF THE ACT PROPOSING THE NET PROFIT AT THE RATE OF 8% OF THE GROSS TURNOVER WHICH CAME TO RS. 1,97,072/-. IT WAS PLEA DED THAT SINCE NO PROPER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE, TH EREFORE, THE ASSESSMENT SO FRAMED/CONFIRMED DESERVES TO BE ADJUD ICATED AFRESH. ON THE OTHER HAND, THE LEARNED SENIOR DEPARTMENTAL REP RESENTATIVE DEFENDED THE IMPUGNED ORDER ON THE GROUND THAT THE ASSESSEE WAS NON- COOPERATIVE AND INSPITE OF OPPORTUNITY GIVEN BY THE ASSESSING OFFICER, THE ASSESSEE DID NOT APPEAR. HOWEVER, SINCE TWO AS SESSMENT ORDERS I.E. ONE DRAFT ASSESSMENT ORDER AND ANOTHER ASSESSM ENT ORDER HAVE BEEN FRAMED, THEREFORE, THE APPEAL MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. 3. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. R EPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT THE ASSESSEE IS A LABOUR CONTRACTOR AND DECLAR ED INCOME OF RS.9,758/- IN ITS RETURN FILED ON 24 TH OCTOBER, 2005 ALONG WITH AUDIT REPORT UNDER SECTION 144A IN THE PRESCRIBED FORM DATED 6.1 0.2005. IT IS SEEN THAT VARIOUS NOTICES ALONG WITH QUESTIONNAIRE WERE ISSUED TO THE ASSESSEE TO WHICH, AS PER THE DEPARTMENT, NOBODY AT TENDED. THERE IS NO MENTION WHETHER ANY NOTICE WAS SERVED UPON THE ASSESSEE ? THE 3 ASSESSEE SAMITI IS ALSO REGISTERED WITH THE REGISTR AR OF FIRMS AND SOCIETIES ON 30.4.2001 AND THIS WAS THE FIRST YEAR OF THE AUDIT AND AS PER THE DEPARTMENT, THE BALANCE-SHEETS WERE UNAUDITED, THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE AND THE FACT THAT THE ASSESSMENTS WERE PRACTICALLY U/S 144 (THOUGH MENTIONED U/S 143(3) OF THE ACT), I AM OF THE VIEW THAT THE ASSESSMENT ORDER FRAMED NEEDS TO BE A DJUDICATED UPON AFRESH. I, THEREFORE, DIRECT THE LEARNED ASSESSING OFFICER TO REFRAME THE ASSESSMENT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO MENTION HERE THAT THE ASSESS EE IS AT LIBERTY TO FURNISH EVIDENCE, IF ANY, BEFORE THE ASSESSING OFFI CER TO SUBSTANTIATE ITS CLAIM. THIS APPEAL OF THE ASSESSEE IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 8 TH MARCH,2011. (JOGINDER SINGH) JUDICIAL MEMBER 8 TH MARCH, 2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-