Rajesh Pangal, Pune V. Income-tax Officer, Pune

ITA 1140/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6045 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: C V DESHPANDE
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1140/PUN/2017 / ASSESSMENT YEAR : 2012-13 MR. RAJESH PANGAL, GAT NO.704, S.NO.126, KUDALWADI, CHINCHWAD, TALUKA : HAVELI, PUNE. PAN : AIWPP1481A. . / APPELLANT. V/S THE INCOME TAX OFFICER, WARD - 8(3), PUNE. . / RESPONDENT ASSESSEE BY : SHRI C.V. DESHPANDE. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 9, PUNE DATED 17.02.2017 F OR THE ASSESSMENT YEAR 2012-13. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR A.Y . 2012-13 ON 27.09.2012 DECLARING TOTAL INCOME AT RS.13,07,58 0/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER NOTICE U/S 143(2) O F THE ACT / DATE OF HEARING : 17.07.2019 / DATE OF PRONOUNCEMENT: 01.08.2019 2 WAS ISSUED AND SERVED ON THE ASSESSEE. SUBSEQUENTLY, THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 144 OF THE ACT VIDE ORDER DT.1 7.03.2015 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,24,60,040/-. A GGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.C IT(A), WHO VIDE ORDER DT.17.02.2017 (IN APPEAL NO.PN/CIT(A)-6/ITO, WARD- 8(3)/48/2015-16) DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF NON-PROSECUTION. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NO W IN APPEAL BEFORE US AND HAS RAISED THE GROUNDS WHICH HAVE BEEN LATER REVISED AND THE REVISED GROUNDS READ AS UNDER : 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LOWER AUTHORITIES HAVE ERRED DISMISSING THE APPEAL EX-PARTE, WITHOUT GIVING PROPER OPPORTUNITY OF HEARING, THE ACT BEING IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, IT IS PRAYED THAT APP EAL MAY KINDLY BE RESTORED BACK FOR RECONSIDERATION BY LOWER AUTHO RITIES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LOWER AUTHORITIES HAVE ERRED IN MAKING DISALLOWANCE OF RS 10,00,0001- ON AD-HOC BASIS WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE'S BOOKS HAVE BEEN DULY AUDITED U/S 44AB OF THE IT ACT . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LOWER AUTHORITIES HAVE ERRED IN MAKING DISALLOWANCE OF FIXED ASSETS PURCHASED BY THE ASSESSEE AMOUNTING TO RS.7, 71,588/- FOR WANT OF PROOF OF PURCHASE OF ASSET HOWEVER WITHOUT APPRECIA TING THE FACT THAT THE ASSESSEE'S BOOKS HAVE BEEN DULY AUDITED U/ S 44AB OF THE I T ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LOWER AUTHORITIES HAVE ERRED IN MAKING DISALLOWANCE OF RS 1,28,95,872/- OF UNSECURED LOANS FOR WANT OF PROOF OF UNSECURED L OANS. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LOWER AUTHORITIES HAVE ERRED IN MAKING DISALLOWANCE OF RS 64,85,000/- BY INVOKING PROVISIONS OF SECTION 69A OF THE INCOME TAX ACT 1961. 6. THE APPELLANT WOULD LIKE TO LEAVE, ADD, ALTER, A MEND, MODIFY, DELETE, ABOVE GROUNDS OF APPEAL BEFORE OR DURING TH E COURSE OF HEARING IN THE INTEREST OF NATURAL JUSTICE. 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THE TH EN COUNSEL APPOINTED BY THE ASSESSEE NEVER APPEARED BEFORE THE A O AND LD.CIT(A) AND ALSO NEVER INFORMED THE ASSESSEE ABOUT HIS NON-APPE ARANCE BEFORE THE AUTHORITIES. HE THEREFORE SUBMITTED THAT IN SUCH A S ITUATION, THE 3 LOWER AUTHORITIES PASSED EX-PARTE ORDER. HE FURTHER SU BMITTED THAT ASSESSEE IS A SMALL TIME SCRAP DEALER AND STUDIED UPTO 7 TH STANDARD ONLY AND HE DOES NOT HAVE ANY IDEA ABOUT THE INCOME TAX LA WS. HE THEREFORE SUBMITTED THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LOWER AUTHORITIES AND FURTHE R SUBMITTED THAT HE UNDERTAKES ON BEHALF OF THE ASSESSEE THAT THE ASSES SEE WILL FULLY CO- OPERATE AND APPEAR BEFORE THE LOWER AUTHORITIES. IN SUP PORT OF HIS CONTENTION, HE ALSO FILED SWORN AFFIDAVIT OF THE ASSESSEE. LD.D.R. ON THE OTHER HAND, SUBMITTED THAT THERE WAS TOTAL NON-COMPLIANC E BY THE ASSESSEE BEFORE AO AND LD.CIT(A) AND IN SUCH A SITUATION, THERE WAS NO OTHER OPTION LEFT TO THEM BUT TO PASS AN EX-PARTE ORDE R. HE THUS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE PRESENT CASE, THE ASSESSMEN T ORDER WAS FRAMED BY THE AO U/S 143(3) R.W.S 144 OF THE ACT WHEREBY AGAINST THE DECLARED INCOME OF RS.13,07,580/- THE TOTAL INCOME WAS ASSE SSED AT RS.2,24,60,040/-. EVEN THE ORDER PASSED BY LD.CIT(A) IS AN EX-PARTE ORDER WHEREIN HE HAS DISMISSED THE APPEAL OF THE ASSESSE E WITHOUT GOING INTO THE MERITS OF THE CASE. IT IS A SETTLED LAW THAT LD. C IT(A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX PARTE ORDER, THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUNDS OF APPEAL OF THE ASSESSE E ON MERITS THEREOF. CONSIDERING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ASSESSEE BE GIVEN ON E MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE AO. WE THEREFOR E REMIT THE ISSUE BACK TO AO TO DECIDE THE ISSUE AFRESH ON MERITS AND IN A CCORDANCE WITH LAW. NEEDLESS TO STATE THAT AO SHALL GRANT ADEQUATE OPP ORTUNITY OF 4 HEARING TO ASSESSEE. ASSESSEE IS ALSO DIRECTED TO PROMP TLY FURNISH THE DETAILS CALLED FOR BY AO. IN CASE, THE ASSESSEE FAILS TO FURN ISH THE REQUIRED DETAILS, AO SHALL BE FREE TO DECIDE THE ISSUE BASED ON MATERIAL ON RECORD. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE BACK TO THE FILE OF AO, WE ARE NOT ADJUDICATING ON MERITS THE OTHER GROUND S OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 1 ST DAY OF AUGUST, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 1 ST AUGUST, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-9, PUNE. PR. CIT-5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.