V.V.S.K.D.N.Soma Raju, Bhimavaram V. The Assistant Commissioner of Income tax, Central Circle-2, , Bhimavaram

ITA 118/VIZ/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2871 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 13-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SONAWAL
• Keywords: Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 1 15 TO 119 / VIZ /201 9 (ASST. YEAR : 20 11 - 12 TO 20 15 - 1 6 ) V.V.S.K.D.N. SOMA RAJU, D.NO. 27 - 3 - 28/3, SRIRAMPURAM, BHIMAVARAM, WEST GODAVARI DISTRICT. V S . A CIT, CENTRAL CIRCLE , RAJAHMUNDRY . PAN NO. BLKPS 4553 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI D.K. SONAWAL CIT DR DATE OF HEARING : 11 / 0 6 /201 9 . DATE OF PRONOUNCEMENT : 14 / 0 6 /201 9 . O R D E R PER BENCH: THESE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - 12 , HYDERABAD , ALL DATED 18 /0 7 /201 8 FOR THE ASSESSMENT YEARS 20 11 - 12 TO 20 15 - 1 6 . SINCE FACTS AND ISSUES ARE COMMON, CLUBBED AND HEARD TOGETHER AND DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER . 2. IN ALL THESE APPEALS, THERE IS A DELAY OF 136 DAYS . THE ASSESSEE HAS FILED AN AFFIDAVIT WHEREIN HE STATED THAT DELAY IS NOT AN INTENTIONAL. DUE TO VARIOUS REASONS, HE COULD NOT FILE THE 2 ITA NO S . 115 - 119/VIZ/2019 ( V.V.S.K.D.N. SOMA RAJU ) APPEAL IN TIME. THE DETAILS FOR THE DELAY HAVE BEEN EXPLAINED AS UNDER: - 2 THE PETITIONER STARTED SAND BUSINESS IN THE YEAR 2010. FOR THE DEVELOPMENT OF THE BUSINESS, HE RAISED HUGE LOANS OF RS.91,00,000/ - FROM 6 PERSONS. FOR THIS PURPOSE, THE PETITIONER SIGNED BLANK PRO - NOTES AND CHEQUES. THE BUSINESS FLOURISHED WELL TILL THE YEAR 2015 AND AT A POINT OF TIME NEARLY 200 PEOPLE WERE WORKING WITH HIM. DURING SUCH PERIOD, THE PETITIONER COULD SERVICE THE HUGE INTEREST COSTS TO THE CREDITORS. HOWEVER, DUE TO MARKET FLUCTUATIONS, CHANGE IN POLICY OF GOVERNMENT, HEAVY RAINS ETC . THE P ETITIONER SUFFERED HUGE LOSSES AND FINALLY THE BUSINESS WAS CLOSED DOWN IN THE YEAR 2016. A STAGE WAS REACHED WHEN THE PETITIONER WAS NOT LEFT WITH ANY MONEY AND HE AND HIS FAMILY DEPENDED UPON THEIR NEAR RELATIVES FOR THEIR LIVING. THE CREDITORS STARTED H ARASSING THE PETITIONER FOR REPAYMENT OF THEIR DEBTS. THE PETITIONER FILED AN INSOLVENCY PETITION BEFORE THE H ON'BLE COURT OF SENIOR CIVIL JUDGE, BHIMAVARAM IN IP NO.6/2017 ON 25.10.2018. THE PETITION IS ADMITTED AND NOT YET DISPOSED OFF. 3. WHILE IT IS SO, WITH THE ABOVE ACTION OF THE PETITIONER, THE CREDITORS WERE ENRAGED AND STARTED TO HARASS THE PETITIONER BY LODGING FALSE CRIMINAL CASES FOR GETTING THE APPELLANT ARRESTED BY POLICE. THE PETITIONER RAN AWAY FOR HIS LIFE AND HIS WHEREABOUTS WERE NOT KNOWN EVEN TO HIS FAMILY FOR A LONG TIME. (COPY OF THE INSOLVENCY PETITION IS ENCLOSED HEREWITH). THE PETITIONER RETURNED DURING THE LAST WEEK OF FEBRUARY, 2019. WHILE GOING THROUGH THE DOCUMENTS HE NOTICED THAT THE APPEAL AGAINST THE ORDER DT.18. 07.2018 WAS NOT FILED BEFORE THE H ON'BLE ITAT. AS SUCH, THE PETITIONER IMMEDIATELY TOOK STEPS AND COULD FILE THE APPEAL ON 13.03.2019. 3 . FROM THE ABOVE, WE FIND THAT THERE IS A SUFFICIENT CAUSE TO CONDONE THE DELAY . ACCORDINGLY, DELAY IS CONDONED. 4 . SO FAR AS MERITS OF THE CASE IS CONCERNED, THE ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) , THEREFORE, LD. CIT(A) DISMISSED THE APPEAL BY APPLYING THE RATIO LAID DOWN IN THE CASE OF CIT VS. MULTIPLAN (INDIA) PVT. LTD . (38 ITD 320) . THE ASSESSEE SUBMIT TED 3 ITA NO S . 115 - 119/VIZ/2019 ( V.V.S.K.D.N. SOMA RAJU ) BEFORE US THAT HE IS A COMMISSION AGENT AND SUPPLIED FISH TO THE VARIOUS BROKERS AT ORISSA . AS HE HAS NOT RECEIVED MONEY FROM THE BROKERS, HE LEFT BHIMAVARAM TO COLLECT THE DUES FROM ORISSA, THEREFORE, HE IS NOT ABLE TO APPEAR BEFORE THE LD. CIT(A) AND SUBMITTED THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGLY OPPOSED BY SUBMITTING THAT LD. CIT(A) HAS GIVEN AS MANY AS OPPORTUNITIES, HENCE, NO FURTHER OPPORTUNITY IS REQUIRED TO BE GIVEN . 6 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 7 . WE FIND THAT IT IS A FACT THAT LD. CIT(A) HAS GIVEN NEAR ABOUT 08 OPPORTUNITIES TO THE ASSESSEE. THE CASE OF THE ASSESSEE IS THAT HE HAS ONLY A COMMISSION AGENT OF FISH BUSINESS , HE NEVER CARRIED OUT ANY FISHING ACTIVITIES AND NOMINAL COMMISSION HAS TO BE ASSESSED. SO FAR AS NON - APPEARANCE IS CONCERNED, HE HAS ALREADY EXPLAINED THE REASONS BEFORE THE LD. CIT (A). WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT THE LD. CIT(A) WITHOUT CONSIDERING ANYTHING ABOUT THE MERITS OF THE CASE SIMPLY DISMISSED THE APPEAL OF THE ASSESSEE. . THE LD. CIT(A) OUGHT TO HAVE BEEN CONSIDERED THE ISSUE ON MERITS IN ACCORDANCE WITH LAW , THOUGH ASSESSEE HAS 4 ITA NO S . 115 - 119/VIZ/2019 ( V.V.S.K.D.N. SOMA RAJU ) NOT APPEARED BEFORE HIM. THE LD. CIT(A) HAS NO POWER TO APPLY THE RATIO OF MULTIPLAN (INDIA) PVT. LTD.S CASE (SUPRA) , T HEREFORE, IN OUR OPINION , ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. ACCORDING LY, WE SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND REMIT THE MATTER BACK TO HIM TO ADJUDICATE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, ALL THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 4 T H DAY OF JUNE , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 4 T H JUNE , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE - V.V.S.K.D.N. SOMA RAJU, D.NO. 27 - 3 - 28/3, SRIRAMPURAM, BHIMAVARAM, WEST GODAVARI DISTRICT. 2. THE REVENUE ACIT, CENTRAL CIRCLE, RAJAHMUNDRY . 3. THE PR. CIT , RAJAHMUNDRY. 4. THE CIT(A) - 12, HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.