SHRI MANISH KUMAR MAKKAR, FAZILKA V. INCOME TAX OFFICER WARD 2 (4), ABOHAR

ITA 124/ASR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9194 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.124(ASR)/2018 ASSESSMENT YEAR: 2009-10 SH. MANISH KUMAR MAKKAR, ADVOCATE, CIVIL LINES, PHASE-II, FAZILKA [PAN:AGQPM 7068J] VS. INCOME TAX OFFICER, WARD-2(4), ABHOR (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SH. CHARAN D ASS (LD. DR) DATE OF HEARING: 03.12.2018 DATE OF PRONOUNCEMENT: 19.12.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/AP PELLANT AGAINST THE ORDER DATED 16.11.2017, PASSED BY THE LD. CIT(A)-, BATHINDA, U/S. 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT) FOR ASST. YEAR:2009-10. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPE AL. 1. THAT THE LD. CIT(A), BATHINDA ERRED ON FACT S AND LAW IN CONFIRMING THE ORDER OF THE AO IMPOSING PENALTY U/S 271(1)(C), AMOUNTING TO RS.6,41,335/-, DATED 05.05.2015 WITHOUT PROVIDING P ROPER OPPORTUNITY OF HEARING. 2. THAT THE LD. CIT(A), BATHINDA ERRED ON FACTS AND LAW IN CONFIRMING THE ORDER OF THE AO IMPOSING PENALTY U/S 271(1)(C), AMOUNTING TO RS.6,41,335/-, DATED 05.05.2015 DESPITE THE FACT TH AT THE ORDER OF THE AO PASSED U/S 143(3) HAD ALREADY BEEN SET ASIDE BY THE AMRITSAR BENCH OF THE HONBLE ITAT AND A COPY OF THE SAME WAS ALSO SE NT TO THE COMMISSIONER OF INCOME TAX (APPEALS), BATHINDA. ITA NO.124/ASR/2018 (A.Y.2009-10) MANI SH KUMAR MAKKAR, FAZILKA V. ITO 2 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THE INSTANT CASE, THE RETURN WAS FILED ON 25.07.2009 FOR THE A.Y.2009-10, BY DECLARIN G AN INCOME OF RS.1,16,000/-AND THEREAFTER, THE CASE WAS SELECTED FOR SCRU TINY THROUGH CASS AND THE RETURN WAS ASSESSED AT RS.22,98,130/-, BY TH E ASSESSING OFFICER U/S 143(3) OF THE ACT ON 12.12.2011, AGAINST WH ICH THE APPEAL WAS FILED BEFORE THE LD. CIT(A), WHO VIDE ORDER DATED 2 7.02.2015, REJECTED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE I N THE ASSESSMENT ORDER AMOUNTING TO RS.17,67,500/- AND RS.3,20,000/-, AGAINST WHICH, THE ASSESSEE HAS PREFERRED THE APPEAL BEFORE THE ITAT, AMRI TSAR AND DURING THE PENALTY PROCEEDINGS, THE ASSESSEE HAD REQUESTED TO THE AS SESSING OFFICER TO KEEP THE PENALTY PROCEEDINGS IN ABEYANCE TILL THE PEND ENCY OF THE APPEAL BEFORE THE ITAT, HOWEVER, THE ASSESSING OFFICER IMPOSED A PENALTY OF RS.6,41,335/- ON 05.05.2015, WHICH WAS CHALLENGED BEFOR E THE LD. CIT(A). THE LD. CIT(A) VIDE HIS ORDER DATED 16.11.2017 DISMISSE D THE APPEAL OF THE ASSESSEE EX-PARTE WITHOUT GOING INTO THE MERITS OF THE CASE ON NONE APPEARANCE OF THE ASSESSEE/APPELLANT. 4. THE SAID ORDER IS UNDER CHALLENGE ON THE GROUND THAT NO PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD WAS GIVEN TO TH E ASSESSEE/APPELLANT BY THE LD. CIT(A) AND THE PENALTY HAS BEEN AFFIRMED , DESPITE THE FACT THAT THE ORDER OF THE AO PASSED U/S 143(3) HAS ALREADY BEEN SET ASIDE BY THE AMRITSAR BENCH OF ITAT. IT IS FURTHER AVERRED IN GROUN D NO.2 THAT COPY OF THE SAME WAS ALSO SENT TO THE LD. CIT(A) BATHINDA. 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDE R OF AUTHORITIES BELOW. 6. AT THE TIME OF HEARING, NO ONE WAS APPEARED ON BEHA LF OF THE ASSESSEE/APPELLANT, HOWEVER, FROM THE RECORD, IT APPEARS THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSION, WHICH WAS RECEIVED ON 28.1 1.2018. IN THE ITA NO.124/ASR/2018 (A.Y.2009-10) MANI SH KUMAR MAKKAR, FAZILKA V. ITO 3 WRITTEN SUBMISSION, THE ASSESSEE/APPELLANT HAS SUBMITTED TH E FACTUAL POSITION AS OBSERVED ABOVE AND ALSO FILED A COPY OF THE ORDER DATED 03.08.2016 PASSED BY THE CO-ORDINATE BENCH AT AMRITSAR. IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE LD. CIT(A) SENT SEVERAL NOTICES AND OFFERED VARIOUS OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE/APPELLANT, ALTHOUGH THE APPELLANT SOUGHT ADJOURNMENT ON TWO OCCA SIONS, HOWEVER, REMAINED ABSENT ON VARIOUS OCCASIONS AS MENTIONED IN PARA NO.3 OF THE IMPUGNED ORDER BY THE LD. CIT(A). THEREFORE, IT CANN OT BE SAID THAT PROPER OPPORTUNITIES OF BEING HEARD WAS NOT PROVIDED BY THE LD. CIT(A), HOWEVER, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE , AS THE HONBLE ITAT BENCH AT AMRITSAR IN ITA NO.198(ASR)/2015 AND ITA NO.427(ASR)/2013 VIDE CONSOLIDATED ORDER DATED 03.08.2016 PASSED IN THE CASE OF THE ASSESSEE/APPELLANT ITSELF, SET ASIDE THE ORIGINAL ASSESSMENT W ITH A DIRECTION TO DECIDE AFRESH, HENCE, WE FEEL IT APPROPRIATE TO SET ASIDE THE ORDER IMPUGNED HEREIN PASSED BY THE LD. CIT(A) AND CONSEQUENT LY THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.12.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 19.12.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SH. MANISH KUMAR MAKKAR, ADVOCATE, CIVIL LINES, PHASE-II, FAZILKA (2) THE INCOME TAX OFFICER, WARD-2(A), ABHOR (3) THE CIT(A), BATHINDA (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER FILENAME: MANISH KUMAR MAKKAR. 124 ASR 2018 DIRECTORY: D:\DOCUMENT\NKC ORDERS 2018 TEMPLATE: C:\USERS\ETC PARMOD\APPDATA\ROAMING\MICROSOFT\TEMPLATES\NORMAL.D OT TITLE: IN THE INCOME TAX APPELLATE TRIBU NAL SUBJECT: AUTHOR: RAHUL PRABHAKAR KEYWORDS: COMMENTS: CREATION DATE: 12/10/2018 11:42:00 AM CHANGE NUMBER: 99 LAST SAVED ON: 12/21/2018 11:21:00 AM LAST SAVED BY: ETC PARMOD TOTAL EDITING TIME: 112 MINUTES LAST PRINTED ON: 12/21/2018 11:22:00 AM AS OF LAST COMPLETE PRINTING NUMBER OF PAGES: 4 (APPROX.) NUMBER OF WORDS: 881 (APPROX.) NUMBER OF CHARACTERS: 5,024 (APPROX.)