Bijay Kumar Tibrewal, Angul V. ITO, Angul Ward, Angul

ITA 127/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2802 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-08-2018
• Assessment Year: 2014-2015
• Appeal Filed On: 06-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P R MOHANTY
• Keywords: Principle of natural justice; Reasonable cause
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM . / ITA NO. 127 /CTK/201 8 ( [ [ / ASSESSMENT YEAR : 20 1 4 - 20 1 5 ) BIJAY KUMAR TIBREWAL, AT:BOINDA, PO:KISHOREGANJ DIST: ANGUL, ODISHA - 759127 VS. THE INCOME TAX OFFICER, ANGUL WARD, ANGUL, ODISHA ./ ./ PAN/GIR NO. : A BF PT 3971 P ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : S HRI P .R.MOHANTY , AR /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 2 9 / 0 8 /201 8 / DATE OF PRONOUNCEMENT 29 / 0 8 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : TH IS IS AN APPEAL FIL ED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 2 , BHUBANESWAR , DATED 25.12.2017 PASSED IN I.T.APPEAL NO. 020 0 / 20 16 - 17 FOR THE ASSESSMENT YEAR 201 4 - 201 5 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE LD. CIT (APPEALS) HAS ER RED IN LAW BY DISMISSING THE APPEAL EX - PARTY WITHOUT PROVIDING ADEQUATE OPPORTUNITY AND PRESUMING THE ASSESSEE IS NOT INTERESTED IN THE APPEAL VIOLATES THE PRINCIPLE OF NATURAL JUSTICE. HENCE THE ORDER PASSED BY THE LD. CIT APPEAL NEEDS TO BE ANNULLED. 2. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE DISALLOWANCES OF RS . 16,76,800/ - IN AN EX - PARTY ORDER EVEN WITHOUT EXAMINING THE MERITS OF THE CASE IS NOT SUSTAINABLE IN THE EYE OF LAW AND HENCE THE ORDER OF THE LD. CIT APP EAL NEEDS TO BE ANNULLED. 3. THAT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT APPEAL HAS ERRED IN CONFIRMING THE ADDITION MADE BY AO SIMPLY BECAUSE OF NON SUBMISSION OF RELATED PAPERS IS NOT SUSTAINABLE IN THE EYE OF LAW AND HENCE THE CLAIM OF THE ASSESSEE AS EXEMPTED LONG TERM CAPITAL GAIN U/S 10(38) ITA NO. 12 7 /CTK/201 8 2 AMOUNTING TO RS. 16,76,800/ - FROM SALE OF EQUITY SHARES NEEDS TO BE ALLOWED IN FULL. 4 . THAT THE ORDER OF THE LD. CIT(A) BEING NOT BASED ON THE FACTS OF THE CASE OF THE APPELLANT AND B EING CONTRARY TO LAW, SHOULD HENCE BE QUASHED AND THE APPELLANT BE GIVEN SUCH RELIEF OR RELIEFS AS PRAYED FOR. 5 . THAT THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, MODIFY, SUBSTITUTE, ADD TO, ABRIDGE AND/OR RESCIND ANY OR ALL OF THE ABOVE GROUNDS. 3 . BRI EF FACTS OF THE CASE ARE THAT THE ASSESSEE IS PRACTISING CHARTERED ACCOUNTANT AND FILED THE RETURN OF INCOME ELECTRONICALLY ON 20.02.2015 FOR THE A.Y. 201 4 - 201 5 DECLARING TOTAL INCOME OF RS. 5,03,360/ - . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE AC T. S UBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER T HE AO COMPLETED THE ASSESSMENT ASSESSING TO TAL INCOME AT RS. 21,80,160/ - AND PASSED ORDER U/S.143(3), DATED 28.12.2016 MAKING DISALLOWANCE ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN . 4 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS NO NE APPEARED ON BEHALF OF THE ASSESSEE AND , THEREFORE, THE CIT(A) AFTER CONSIDERING THE FINDINGS OF THE AO, DISMISSED THE APPEAL OF THE ASSESSEE. 5 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 6 . BEFORE US, AT THE TIME OF HEARING LD. AR OF THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) IS AN EX - PARTE ORDER AND , THEREFORE PRAYED FOR OPPORTUNITY TO REPRESENT THE CASE BEFORE THE AO . ITA NO. 12 7 /CTK/201 8 3 7 . CONTRA, LD.DR VEHEMENTLY OBJECTED TO THE SUBMISSIONS OF THE A SSESSEE AND PRAYED THAT THE ASSESSEE HAS NOT COMPLIED THE HEARING NOTICE AND AGAIN PRAYING FOR OPPORTUNITY WITHOUT EXPLAINING THE REASONABLE CAUSE. 8 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. W E FOUND THAT THE LD. CIT (A) HAS REFERRED TO THE HEARING DATES POSTED ON 22.08.2017, 12.12.2017 & 21.12.2017 . PRIMA FACIE IT SHOWS THAT THE ASSESSEE HAS NOT MADE A VIGILANT ATTEMPT TO APPEAR BEFORE THE APPELLATE AUTHORITIES. THEREFORE, WE CONSIDERING THE APPARENT FACTS AND ALSO TH E CONDUCT OF THE ASSESSEE IN NON - COMPLIANCE WITH THE DATE OF HEARING AND K EEPING IN VIEW THE ABOVE BACK GROUND OF THE CASE AND ALSO THE PRAYER OF THE ASSESSEE , IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT NO LOSS WILL BE CAUSED TO THE REVENUE IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE TO PRESENT ITS APPEAL BEFORE THE AO . BUT, KEEPING IN VIEW THE CONDUCT OF THE ASSESSEE BEFORE THE CIT(A), WE DIRECT THE AS SESSEE TO DEPOSIT RS. 5 000/ - (RUPEES FIVE THOUSAND ONLY) BY WAY OF COST TO THE DEPARTMENT WITHIN A PERIOD OF ONE MONTH FROM THE DATE OF THIS ORDER AND THE ASSESSEE SHALL PRODUCE A COPY OF RECEIPT OF PAYMENT OF COST AS EVIDENCE BEFORE THE AO . 9 . FURTHER LD.AR HAS FILED DOCUMENTS IN THE COURSE OF HEARING PROCEEDINGS FOR THE FIRST TIME AND THESE DOCUMENTS WERE NOT AVAILABLE TO THE ASSESSING AUTHORITY, THEREFORE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF AO TO CONSIDER AFRESH AFTER ITA NO. 12 7 /CTK/201 8 4 VERIFYING THE ABOVE DOCUMENTS. LD.AR FURTHER UNDERTOOK THAT HE WILL SUBMIT THE DOCUMENTS BEFORE THE AO POSITIVELY AND WILL NOT TAKE ANY ADJOURNMENT BEFORE THE AO. WE ORDER ACCORDINGLY. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WE D FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 29 / 08 / 201 8 . SD/ - ( N.S.SAINI ) S D/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 29/ 08 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - BIJAY KUMAR TIBREWAL, AT:BOINDA, PO:KISHOREGANJ DIST: ANGUL, ODISHA - 759127 2. / THE RESPONDENT - THE INCOME TA X OFFICER, ANGUL WARD, ANGUL, ODISHA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//