M/S. AASTHA BUILDHOME DEVELOPERS PVT. LTD., JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX , JAIPUR

ITA 128/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1972 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 128 & 129/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2012-13 & 2013-14 M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD., E-60, GIRDHAR MARG, MALVIYA NAGAR, JAIPUR. CUKE VS. ACIT, CIRCLE-6, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAHCA 4165 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI K.L. MOOLCHANDANI (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 05/11/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 30.11.2017 FOR ASSESSMEN T YEARS 2012-13 & 2013-14 RESPECTIVELY. 2. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SUBMIT TED THAT THE ORDER WAS PASSED BY THE LD. CIT(A) EX-PARTE QUA THE ASSESSEE. IT WAS SUBMITTED THAT DUE TO SOME COMMUNICATION GAP BETWEE N THE ASSESSEE COMPANY AND ITS AR, THE APPEAL SO FILED COULD NOT B E DEFENDED BEFORE ITA NO. 128 & 129 /JP/2018 M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD. VS. ACIT 2 12 THE LD. CIT(A). IT WAS SUBMITTED THAT NO WRITTEN R EPLY OR ANY EXPLANATION WHATSOEVER COULD BE FILED BY THE AR OF THE APPELLANT FOR THE REASONS BEST KNOWN TO HIM. THE ASSESSEE COMPANY WAS UNDER THE BONA-FIDE BELIEF THAT SINCE THE AR HAD BEEN AUTHORI ZED TO TAKE PROPER CARE OF SUCH PROCEEDINGS, SO THEY FELT COMPLACENT A ND HAD LEFT THE PROCEEDINGS AT THE DISPOSAL OF ITS AR ONLY. IT WAS ONLY AFTER THE RECEIPT OF THE APPEAL ORDER, THE ASSESSEE COMPANY CAME TO K NOW ABOUT THE NON-COMPLIANCE ON THE PART OF ITS AR. THE ASSESSEE COMPANY IS STILL UNABLE TO UNDERSTAND AS TO HOW AND UNDER WHAT CIRCU MSTANCES, NO COMPLIANCE WAS MADE BY THE AR OF HIS STATURE THAT T OO WITHOUT INFORMING THE ASSESSEE COMPANY ABOUT SUCH NON-COMPL IANCE. AS NON- COMPLIANCE OF THE APPEAL PROCEEDINGS WAS NOT WITHIN THE NOTICE OF THE ASSESSEE COMPANY SO THE APPEAL COULD NOT BE DEFENDE D PROPERLY BEFORE THE ID. CIT (A) FOR REASONS BEYOND ITS CONTR OL. IT WAS SUBMITTED THAT AS HELD CONSISTENTLY BY THE JUDICIAL AUTHORITIES, FAILURE OF AUTHORIZED REPRESENTATIVE TO ATTEND ASSESSMENT PROC EEDINGS WITHOUT INFORMING ASSESSEE IS A 'REASONABLE CAUSE' AND IN S UPPORT, RELIANCE WAS PLACED ON THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF INDERJEET SINGH DAMANIA, NOIDA VS. ACIT CIRCLE-33(1 ) NEW DELHI (ITA NO. 5742 & 5743) WHEREIN IT WAS OBSERVED AS UNDER: 'IT IS OUR CONSIDERED OPINION THAT THE FAILURE OF T HE ASSESSEE'S COUNSEL TO ATTEND THE ASSESSMENT PROCEED INGS WITHOUT INFORMING THE ASSESSEE WAS A REASONABLE CAUSE WHICH WOULD FALL WITHIN THE EXCEPTION AS PROVIDED IN SECTION 273B' IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE COMP ANY WAS PREVENTED . BY REASONABLE CAUSE U/S 273B OF THE ACT FROM DEFEND ING ITS APPEAL ITA NO. 128 & 129 /JP/2018 M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD. VS. ACIT 3 BEFORE THE LD. CIT(A). AS NO WRITTEN REPLY OR EXPLA NATION COULD BE SUBMITTED BEFORE THE ID. CIT (A) TO DEFEND THE APPE AL SO THE ID. CIT (A) HAD PASSED THE APPEAL ORDER IN THE SPIRIT OF `AN EX -PARTE ORDER' WITH THE FOLLOWING FINDINGS: 'IN VIEW OF THE FACT THAT NO FURTHER SUBMISSION HAV E BEEN MADE NOR DETAILS FILED BEFORE ME, THE ADDITION MADE BY T HE ASSESSING OFFICER IS CONFIRMED' IT WAS SUBMITTED THAT THE APPEAL ORDER HAS BEEN PAS SED IN THE `SPIRIT OF AN EX-PARTE ORDER' WITHOUT ADDRESSING THE VARIOU S POINTS AT ISSUE AND THE VARIOUS CONTENTIONS DUE TO NON-APPEARANCE A ND NON- REPRESENTATION BY THE AR OF THE APPELLANT. IN SUPPO RT OF ITS CONTENTIONS, THE ASSESSEE COMPANY HAS FILED THE AFF IDAVIT OF ONE OF ITS DIRECTORS. IT WAS ACCORDINGLY SUBMITTED THAT IN TH E INTEREST OF `EQUITY' AND `NATURAL JUSTICE', THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE LD CIT(A) TO EXAMINE THE SAME ON MERITS. 3. THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAS BEE N GRANTED SUFFICIENT OPPORTUNITIES BY THE LD. CIT(A) HOWEVER, THE ASSESSEE HAS FAILED TO ATTEND THE PROCEEDINGS BEFORE THE LD. CIT (A). HOWEVER, THE LD DR FAIRLY SUBMITTED THAT WHERE THE BENCH SO DECIDE, THE MATTER MAY BE SET-ASIDE TO THE FILE OF THE LD CIT(A) FOR EXAMI NATION OF MATTER ON MERITS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HA S PROVIDED VARIOUS ITA NO. 128 & 129 /JP/2018 M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD. VS. ACIT 4 OPPORTUNITIES TO THE ASSESSEE COMPANY, HOWEVER, THE LD. AR SO AUTHORIZED BY THE ASSESSEE COMPANY HAS NOT ATTENDED TO THE SAID PROCEEDINGS. THE LD CIT(A) THEREAFTER PASSED THE OR DER EX-PARTE QUA THE ASSESSEE RELYING SOLELY ON THE FINDINGS OF THE ASSESSING OFFICER. AT THE SAME TIME, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE COMPANY HAS DULY APPOINTED THE AR TO ATTEN D TO THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AND DUE TO THE REASONS BEYOND ITS CONTROL AND IMAGINATION, THE LD. AR HAS NOT ATTENDED TO THE PROCEEDINGS. IN THE AFFIDAVIT SO FILED BY THE DIREC TOR OF THE ASSESSEE COMPANY, THE ASSESSEE HAS SUBMITTED THAT THE LD. AR WHICH HAS BEEN AUTHORIZED TO ATTEND TO THE APPELLATE PROCEEDINGS B EFORE THE LD. CIT(A) HAS NOT ATTENDED TO THOSE PROCEEDINGS WITHOUT NOTIC E AND KNOWLEDGE OF THE ASSESSEE COMPANY. IT WAS FURTHER SUBMITTED I N THE AFFIDAVIT THAT THE AUTHORIZED REPRESENTATIVE DID NOT INTIMATE THE ASSESSEE AT ANY STAGE THAT THEY WOULD NOT BE ATTENDING TO THE APPEA L PROCEEDING AND THEREFORE, THE ASSESSEE WAS UNDER BONA-FIDE BELIEF THAT THE LD. AR WAS TAKING CARE OF ITS APPEAL PROCEEDINGS AND IT WAS ON LY AFTER RECEIVING THE APPEAL ORDERS THAT THE ASSESSEE CAME TO KNOW AB OUT SUCH DEFAULT ON THE PART OF THE LD. AR. FURTHER, IN FORM NO. 35, IT IS NOTED THAT THE ADDRESS FOR COMMUNICATION/NOTICES HAS BEEN STATED B Y THE ASSESSEE COMPANY AS THAT OF ITS AR. IN THE PECULIAR FACTS A ND CIRCUMSTANCES OF THE CASE WHERE THE LD AR DULY APPOINTED BY THE ASSE SSEE COMPANY FAILS TO REPRESENT THE ASSESSEE BEFORE THE LD CIT(A ), WE FIND THAT THERE IS A REASONABLE CAUSE ON PART OF THE ASSESSEE COMPA NY IN NOT ATTENDING TO SUCH PROCEEDINGS AND THE ASSESSEE COMP ANY DESERVES ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE T HE LD CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY , THE MATTER IS SET ITA NO. 128 & 129 /JP/2018 M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD. VS. ACIT 5 ASIDE TO THE FILE OF THE LD. CIT(A) TO EXAMINE THE SAME AFRESH AFTER PROCEEDINGS REASONABLE OPPORTUNITY TO THE ASSESSEE. AT THE SAME TIME, THE ASSESSEE IS DIRECTED TO ATTEND THE PROCEEDING S O SCHEDULED BY THE LD. CIT(A) AND SHOULD NOT SEEK ANY UNNECESSARY ADJO URNMENT IN THE MATTER WITHOUT SHOWING REASONABLE CAUSE TO THE SATI SFACTION OF THE LD.CIT(A). IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/11/2018. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S AASTHA BUILDHOME DEVELOPERS PVT. LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-6, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 128 & 129/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.