Smt. Ram Kanya Verma, Secunderabad V. ITO, Hyderabad

ITA 1179/HYD/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1380 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2001-2002
• Appeal Filed On: 13-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMEBR AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.1179/HYD/07 & ITA NO.930/HYD/2006 (ASSESSMENT YEAR - 2001-02) SMT. RAM KANYA VERMA, SECUNDERABAD. (PAN - ABUPV 2335 G ) V/S INCOME-TAX OFFICER, WARD 10(3), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.P.RAMASWAMY RESPONDENT BY : SHRI K.V.N.CHARYA O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER: THESE TWO APPEALS ARE FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02. WHILE THE APPEAL, ITA NO.1179 /HYD/07 IS DIRECTED AGAINST THE ORDER OF THE CIT(A) VI HYDERABAD , DATED 1.3.2005 DISPOSING THE APPEAL ARISING OUT OF THE ASSESSMENT DATED 18.6.2004 MADE UNDER S.143(3) READ WITH S.147 OF THE INCOME-TA X ACT, 1961(THE ACT), THE OTHER APPEAL ITA NO.930/HYD/2006 IS DIRECTED AGAINST THE ORDER OF THE CIT(A) VI HYDERABAD DATED 23.6.2006, CO NFIRMING THE PENALTY OF RS.3,51,000 LEVIED UNDER S.271(1)(C) OF TH E ACT FOR THE ASSESSMENT YEAR 2001-02. SINCE THERE ARE COMMON FEATURES INVOLVED IN BOTH THESE APPEALS, THESE APPEALS ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.1179/HYD/07 & 930/HYD/2006 SMT. RAM KANYA VERMA, SECUNDERABAD. . 2 2. LET US FIRST TAKE UP FOR CONSIDERATION, THE QUANTUM APPEAL OF THE ASSESSEE, VIZ. ITA NO.1179/HYD/07. 3. AT THE OUTSET, WE MAY NOTE THAT THERE WAS INORDI NATE DELAY OF 887 DAYS IN THE FILING OF THIS APPEAL BY THE ASSESSEE . ASSESSEE HAS FILED A PETITION SEEKING CONDONATION OF DELAY, WHICH H AS BEEN SUPPORTED BY THE AFFIDAVITS OF THE CONNECTED PERSONS, INCLUDING HE R HUSBAND, AND THE CONCERNED CHARTERED ACCOUNTANT, WHO WAS PARTNER OF T HE AUDITOR FIRM, M/S. RATHI & MALANI. ACCORDING TO THE ASSESSEE, THE DELAY HAS OCCURRED ON ACCOUNT OF MISTAKE OF THE AUDITOR, IN FILING THE APPEAL AGAINST THE ORDER OF THE CIT(A) BEFORE THIS TRIBUNAL . THIS MISTAKE HAS OCCURRED ON ACCOUNT OF THE PARTNER OF THE AUDITOR FIRM, WHO HAS LEFT THE FIRM AND JOINED EMPLOYMENT WITH M/S. INFOSYS TECHNOLOGI ES LTD. ON 17TH AUGUST, 2005, AND WHO WAS ALSO ABROAD FROM 24.2.2007. THE SAID CHARTERED ACCOUNTANT, WHO WAS FORMER PARTNER OF THE AU DITOR FIRM, EXPLAINED THAT IT WAS ONLY ON RECEIPT OF A CALL FROM H IS FORMER PARTNER KAMAL KUMAR RATHI IN CONNECTION WITH THE APPELLATE OR DER IN THE CASE OF SMT.RAM KANYA VERMA FOR THE ASSESSMENT YEAR 2001-02 RECE IVED AND ACKNOWLEDGED BY HIM ON 10.5.2005 AT 2.30 P.M. AS WRIT TEN BY HIM IN HIS OWN HANDWRITING ON THE TOP PORTION OF THE FIRST PAGE OF COPY OF ORDER DATED 1.3.2005, THAT HE REALIZED THAT IN HIS HURRY T O JOIN EMPLOYMENT IN HIS PERSONAL INTEREST, HE OVERLOOKED DUE TO INADVERTEN CE TO THE FACT OF PROCESSING THE APPEAL PAPERS AND ALSO OVERLOOKED TO HAN DOVER A NOTE ON PENDING ACTIONS IN THE BRIEFS HANDLED BY HIM BEFO RE DEPARTING THE AUDITOR FIRM. ON CAREFUL CONSIDERATION OF THE MATTER , IN THE LIGHT OF THE PETITION OF THE ASSESSEE AND SUPPORTING AFFIDAVITS FILE D, WE ARE OF THE VIEW THAT THERE IS JUSTIFIABLE REASON, MORE SO SINCE THE MISTAKE WAS ON THE PART OF FORMER PARTNER OF THE AUDITOR FIRM, F OR THE LATE FILING OF THE ITA NO.1179/HYD/07 & 930/HYD/2006 SMT. RAM KANYA VERMA, SECUNDERABAD. . 3 APPEAL BY THE ASSESSEE. WE ACCORDINGLY CONDONE THE DELAY AND PROCEED TO DISPOSE OFF THE APPEAL ON MERITS. 4. AT THE TIME OF HEARING, IT HAS BEEN BROUGHT TO O UR NOTICE BY THE DISALLOWANCE COUNSEL FOR THE ASSESSEE THAT SUFFICIENT O PPORTUNITY OF HEARING WAS NOT GIVEN BY THE LOWER AUTHORITIES TO PUT FORTH ITS CASE. HE PLACED BEFORE US A COPY OF THE ORDER SHEET AND INVITING OUR ATTENTI9ON TO PAGE-2 THEREOF, SUBMITTED NOTICE UNDER S.143(2) WAS ISSU ED TO THE ASSESSEE ON 17.6.2004 AND THE ASSESSMENT ORDER WAS PASSED IMMEDIATELY ON THE VERY NEXT DAY, VIZ. 18.6.2004. IN THE CIRCUMSTANCES, THE IMPUGNED ASSESSMENT ORDER WAS PASSED POST H ASTE WITHOUT FOLLOWING PRINCIPLES OF NATURAL JUSTICE. RELI ANCE IN THIS BEHALF IS ALSO PLACED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF TIN BOX COMPANY V/S. CIT (249 ITR 216). 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, INVITING OUR ATTENTION TO PARA 4 OF THE ORDER OF THE CIT(A), AND SUBMITTED THAT THERE IS NO MERIT IN THE CONTENTIONS OF THE ASSESSEE WITH REGARD TO ADEQUACY OF THE OPPORTUNITIES GIVEN BY THE ASSESSING OFFICER. HE SUBMITTED THAT THE ONLY ADDITION MADE IS OF RS.10 LA KHS ON ACCOUNT OF CERTAIN EXCESS STOCK OF GOLD JEWELLERY FOUND DURING T HE COURSE OF SURVEY ON 8.9.2000, AND THIS ISSUE WAS DISCUSSED THREADBARE WITH THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMEN T YEAR 2000-01. SEVERAL OPPORTUNITIES WERE ALLOWED T O THE ASSESSEE AND AFTER CONSIDERING ALL THE EVIDENCES FILED BY HER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ADDITION ON ACCOUNT OF EXCESS STO CK OF JEWELLERY WAS MADE IN THE ASSESSMENT ORDER DATED 28.3.20 03 FOR THAT YEAR. ASSESSEE GOT ONE MORE OPPORTUNITY TO PUT FORWARD HER VIEWS DURING THE APPELLATE PROCEEDINGS AGAINST THE ASSESSMENT OR DER FOR ITA NO.1179/HYD/07 & 930/HYD/2006 SMT. RAM KANYA VERMA, SECUNDERABAD. . 4 ASSESSMENT YEAR 2000-01. IT WAS ONLY ON THE TECHNICAL REA SONS BASED ON THE PROVISIONS OF S.69, IT WAS HELD BY THE CIT(A) THAT THE ADDITIONS CANNOT BE SUSTAINED IN ASSESSMENT YEAR 2000-01 AS THE DATE OF SURVEY PERTAINED TO 2001-02. TO COMPLY WITH THESE LEGAL PRO VISIONS OF S.69 OF THE ACT, THE RE-ASSESSMENT PROCEEDINGS WERE INITIATED FOR ASSESSMENT YEAR 2001-02, AND THE IMPUGNED ADDITION HAS BEEN ULT IMATELY MADE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT MAY BE TRUE, AS CONTENDED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT MUCH OF THE ENQUIRY AND INVESTIGATION WAS ALREADY OVER DURING THE IMMEDIATELY PRECEDING YEAR, AND THE REOPENING OF THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION AND IMPUGNED ADDITION WAS PROMPTED BY THE ORDER OF T HE CIT(A) FOR THE PRECEDING YEAR, WHICH TAKING INTO ACCOUNT THE DATE OF S URVEY, HELD THAT THE ADDITION UNDER S.69 CANNOT BE SUSTAINED IN THAT YE AR, AS THE DATE OF SURVEY FALLS UNDER THE ASSESSMENT YEAR 2001-02. STILL, T HE FACT THAT THE NOTICE UNDER S.143(2) ISSUED ON 17.6.2004 IS FOLLOWED B Y THE COMPLETION OF ASSESSMENT ON THE VERY NEXT DAY, VIZ. 18.6.2004 CLEAR LY SHOWS, AS CONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE RE WAS UNDUE HASTE FOR THE COMPLETION OF ASSESSMENT, AND AS SUCH THE ASSESSM ENT WAS PRIMA FACIE FRAMED IN VIOLATION OF THE PRINCIPLE S OF NATURAL JUSTICE. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDERS OF THE LOWE R AUTHORITIES, AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFI CER FOR FRAMING THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING ADEQ UATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1179/HYD/07 & 930/HYD/2006 SMT. RAM KANYA VERMA, SECUNDERABAD. . 5 8. LET US NOW TAKE UP FOR CONSIDERATION, THE PENALTY APPEAL OF THE ASSESSEE, VIZ. ITA NO.930/HYD/06. SINCE THE VERY OR DER OF ASSESSMENT GIVING BIRTH TO THE IMPUGNED PENALTY PROCEEDI NGS IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSE SSING OFFICER FOR FRESH CONSIDERATION, THE IMPUGNED PENALTY ORDER IS ALSO LIABLE TO BE SET ASIDE, FOR BEING CONSIDERED AFRESH IN CONSONANCE WITH THE ASSESSMENT THAT MAY BE MADE IN PURSUANCE OF OUR DIRECTIONS IN THE CONTEXT OF THE ASSESSEE'S APPEAL IN QUANTUM PROCEEDINGS. WE DO SO ACCORDI NGLY AND DIRECT THE ASSESSING OFFICER TO RECONSIDER THE MATTER, IN THE LIGHT OF THE ASSESSMENT THAT MAY BE MADE AFRESH IN ACCORDANCE WITH LAW A ND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . 9. IN THE RESULT, ASSESSEE'S APPEAL, ITA NO.930/HYD/06 I S ALSO ALLOWED FOR STATISTICAL PURPOSES.. 10. TO SUM UP, BOTH THE APPEALS OF THE ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13.11.2009 SD/- SD/- (N.R.S.GANESAN) (AKBER BASHA) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 13TH NOVEMBER, 2009. COPY FORWARDED TO: 1. SMT. RAM KANYA VERMA, C/O. SHRI C.P.RAMASWAMY, ADVOCATE, FLAT NO.303, GITANJALI APARTMENTS, PLOT NO. 108, SRINAGAR COLONY, HYDERABAD. 500 072. 2. INCOME-TAX, OFFICER, WARD 1-0(3), HYDERABAD 3. CIT(A) VI HYDERABAD 4. COMMISSIONER OF INCOME TAX V HYDERABAD ITA NO.1179/HYD/07 & 930/HYD/2006 SMT. RAM KANYA VERMA, SECUNDERABAD. . 6 5. THE D.R., ITAT, HYDERABAD. B.V.S.