Mr Kamruddin Paroddin Khan, Nashik V. CIT (Appeals)-1, Nashik

ITA 1292/PUN/2013

• Counselvise Citation: 129224514 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: KAMRUDDIN P KHAN
• Keywords: Principle of natural justice; Reasonable cause
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO . 1292 / P N/ 20 1 3 ASSESSMENT YEAR : 2009 - 10 KAMRUDDIN PARODDIN KHAN, HOME NO. 18, MAINUDDIN PATHAN MARG, IGATPURI, NASHIK VS. CIT (APPEALS) - I, KENDRIYA RAJASWA BHAVAN, GADKARI CHOWK, OLD AGRA ROAD, NASHIK (APPELLANT) (RESPONDENT) PAN NO. AGCPK5167C APPELLANT BY: SHRI KAMRUDDIN P. KHAN RESPONDENT BY: SHRI P.S. NAIK D ATE OF HEARING : 26 - 08 - 2014 DATE OF PRONOUNCEMENT : 28 - 0 8 - 2014 ORDER PER R.S . PADVEKAR , JM : - IN THIS APPEAL, THE ASSESSEE HAS CHALLENG ED THE IMPUGNED ORDER OF THE LD. CIT(A) - I, NASHIK DATED 01 - 11 - 2012 FOR THE A.Y. 200 9 - 10 DISMISSING THE ASSESSEE S APPEAL FOR THE DELAY OF 4 DAYS IN FILING THE APPEAL . THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN APPEAL IS FILED BEFORE THE TRIBUNAL AGAINST THE ORDER U/S 249(3) OF THE I.T. ACT, 1961, PASSED BY COMMISSIONER (APPEALS) ERRED IN SO DEMANDING F 11 5 53,920/ - WITHOUT APPRECIATING THE FOLLOWING FACTS. 1. COMPENSATION RECEIVED OF RS.16,19,500/ - WHILE PASSING THE ORDER BY HONORABLE A.O., DISALLOW THE COMPENSATION MONEY RECEIVED ON ANCESTRAL LAN D (OWNED BY FAMILY) WHICH IS ACQUIRED BY THE GOVERNMENT OF INDIA (PWD DEPARTMENT) IS FULLY EXEMPTED U/S 10(37) OF THE INCOME TAX ACT 1961. WHILE FILING THE INCOME TAX RETURN FOR A.Y. 2009 - 10, BY MISTAKENLY IT WAS NOT MENTIONED UNDER THE HEAD CAPITAL 2 ITA NO . 1292/PN/2013, M R. KAMRUDDIN PARODDIN KHAN, NASHIK GAIN. WE ARE REQUESTING YOU TO PLEASE CONSIDER THE ABOVE INFORMATION AND ALLOW THE COMPENSATION MONEY OF RS.16,19,500/ - ON COMPULSORY ACQUISITION OF AGRICULTURAL LAND IN URBAN AREA. 2. UNSECURED LOAN OF RS.4,00,000/ - THE UNSECURED LOAN OF RS.4,00,000/ - ACCEPTE D BY THE ASSESSEE FROM FRIENDS AND RELATIVE IN THE F.Y. 2003 - 04 AND ALL THE LOANS ARE SUPPORTED BY THE CONFIRMATION AND OTHER DOCUMENTS AS REQUIRED BY LAW. SO WE ARE DENYING THE DISALLOWANCE OF RS.4,00,000/ - 3. VARIOUS EXPENSES OF RS.99948/ - VARIOUS EXPENS ES OF RS.99948 IS DISALLOWED BY THE HON. A.O. WHICH IS NOT CORRECT, WE HAVE FILLED THE~RETURN U7S 44 AF AND SHOWN NET PROFIT @ 16 % WHERE BOOKS OR ACCOUNTS IS NOT NECESSARY. SO, PLEASE ALLOW THE ABOVE EXPENSES. 4. DEDUCTION UNDER VI - A OF RS.77005/ - THE ASS ESSING OFFICER HAS DISALLOWED THE DEDUCTION UNDER CHAPTER VI - A OF RS.77005/ - WHICH INCLUDE LIC PREMIUM OF RS.61005/ - . ALL THE SUPPORTING DOCUMENT WILL BE SUBMITTED TO YOU AT THE TIME OF HEARING. 2. THE FACTS WHICH ARE REVEALED FROM THE RECORD AS UNDER. THE ASSESSEE IS AN INDIVIDUAL. IT APPEARS THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.Y. 2009 - 10 ON 15 - 03 - 2011 DECLARING TOTAL INCOME AT RS.3,37,480/ - . THE ASSESSEE IS RUNNING A HOTEL UNDER THE NAME AND STYLE OF M/S. HOTEL MOUNT VIEW. THE A SSESSEES CASE WAS SELECTED FOR SCRUTINY AND ASSESSING OFFICER ISSUED THE NOTICES U/S. 14 3 (2) AND 142(1) ON 24 - 08 - 2011. IT APPEARS THAT THE ASSESSING OFFICER ALSO ISSUED THE NOTICE TO THE ASSESSEE AS WELL AS SUBSEQUENT LETTERS BUT THE ASSESSEE DID NOT RES POND TO THE NOTICES. THE ASSESSING OFFICER, THEREFORE, COMPLETED THE HIGH PITCH EX - PARTE ASSESSMENT U/S. 144 BY DETERMINING THE TOTAL INCOME AT RS.25,33,933/ - . THE ASSESSEE CHALLENGED THE ASSESSMENT 3 ITA NO . 1292/PN/2013, M R. KAMRUDDIN PARODDIN KHAN, NASHIK ORDER BEFORE THE LD. CIT(A) BUT THERE WAS A DELAY OF 4 DAYS IN FILING THE APPEAL. THE LD. CIT(A) DECLINE D TO CONDONE THE DELAY OF 4 DAYS AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 3. THERE IS A DELAY IN FILING THE ASSESSEES APPEAL TO THE EXTENT OF 150 DAYS B EFORE THE TRIBUNAL . THE ASSESSEE HAS FILED THE AFFIDAVIT EXPLAINING THE REASONS FOR DELAY WITH PRAYER TO CONDONE THE DELAY IN FILING THE APPEAL. WE HAVE HEARD THE PARTIES AND ANXIOUSLY CONSIDERED THE REASONS GIVEN BY THE ASSESSEE. THE ASSESSEE HAS ALSO FILED THE MEDICAL CERTIFICATE TO DEMONSTRATE THAT DUE TO HIS MEDICAL HEALTH THE APPEAL COULD NOT BE FILED IN TIME. THE SAID REASON IS GIVEN IN HIS AFFIDAVIT ALSO. IT IS ALSO CONTENDED THAT THE DEPARTMENT HAS SEIZED HIS BANK A/C. DUE TO WHICH HE COULD NOT PAY HIS CHILDREN S FEES ALSO. IN OUR OPINION THERE IS A REASONABLE CAUSE SHOWN BY THE ASSESSEE FOR NOT FILING THE APPEAL IN TIME BUT AT THE SAME TIME THERE ARE LATCHES ON THE PART OF THE ASSESSEE. WE, THEREFORE, CONDONE THE DELAY SUBJECT TO THE PAYMENT OF COST OF RS.2,000/ - TO BE PAID TO THE DEPARTMENT WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THE ASSESSEE SHOULD PRODUCE THE CHALLAN BEFORE THE ASSESSING OFFICER. 4. WE FIND THAT THE APPROACH OF THE ASSESSING OFFICER IS NOT JUST AND REASONAB LE IN COMPLETING THE ASSESSMENT BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT. T HE COURTS HAVE LAID DOWN THE WORD OF CAUTION WHEN THE ASSESSING OFFICER PROCEEDS TO COMPLETE THE ASSESSMENT U/S. 144 OF THE ACT. WE FIND THAT IN THE VERY CRYPTIC WAY THE ASSES SING OFFICER HAS COMPLETED THE ASSESSMENT BY RAISING THE HIGH PITCH DEMAND WHICH IN OUR OPINION IT IS NOT SO AS CONTEMPLATED U/S. 144 OF THE ACT. THE LD. CIT(A) HAS ALSO KEPT TECHNICAL APPROACH A ND DECLINED TO CONDONE DELAY OF 4 DAYS. IN THIS SITUATION, WE CONSIDER IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DE NOVO ASSESSMENT. THE ASSESSING 4 ITA NO . 1292/PN/2013, M R. KAMRUDDIN PARODDIN KHAN, NASHIK OFFICER IS DIRECTED TO GIVE AN OPPORTUNITY OF BEING HE A RD TO THE ASSESSEE AS PE R THE PRINCIPLES OF NATURAL JUSTICE AND PASS THE ASS ESSMENT ORDER AFTER CONSIDERING ALL THE CONTENTIONS OF THE ASSESSEE. ACCORDINGLY, GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED FOR THE STATISTICAL PURPOSES. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. PRONOUNCED IN TH E OPEN COURT ON 28 - 0 8 - 201 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 28 TH AUGUST, 20 1 4 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I, NASHIK 4 THE CIT - I, NASHIK 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE