Shashi Pal Agarwal (Legal Heir) Late Kishori Lal Agarwal, Kanpur V. Income Tax Officer-1(2), Kanpur

ITA 134/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4377 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Deemed dividend
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.134/LKW/2016 ASSESSMENT YEAR 2009-10 INCOME TAX OFFICER-1(2), KANPUR VS SHASHI PAL AGARWAL (LEGAL HEIR) LATE KISHORI LAL AGARWAL, 63/3, THE MALL, KANPUR PAN AANPA 5550 G (RESPONDENT) (APPELLANT) SHRI S.K. JAIN AND SHRI SAVRAN SINGH, CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 11 / 0 7 /201 6 DATE OF HEARING 14/07/2016 DATE OF PRONOUNCEMENT O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-I, KANPUR, INTER ALIA ON VARIOUS GROUNDS:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) -I, KANPUR HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APP EAL OF THE APPELLANT IN AN EX-PARTE AND ARBITRARY MANNER, VIDE ORDER DATED 18.12.2015, WITHOUT CONSIDERING THE STATEMENT OF FA CTS AND THE GROUNDS OF APPEAL INJUDICIOUS AND EQUITABLE MANNER. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) -I, KANPUR FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER DATE D 30.12.2011 PASSED BY THE LD, AO U/S 143(3) OF THE INCOME TAX A CT, 1961 IS BAD IN LAW, ILLEGAL, VOID-AB-INITIO AND LIABLE TO B E QUASHED. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) -I, KANPUR HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADD ITION OF RS. 2 11,84,134/- MADE BY THE LD. AO, BY ERRONEOUSLY TREA TING THE UNSECURED LOANS RECEIVED BY THE APPELLANT FROM KUKK I COLOUR PHOTO(P) LTD. AND KUKKI COLOUR PRINTS (P.) LTD., AS 'DEEMED DIVIDEND' WITHIN THE MEANING OF SECTION 2(22)(E) OF THE INCOME TAX ACT,1961. 4. THAT THE IMPUGNED ADDITION OF RS. 11,84,134/- SUSTAINED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), BAREILLY IS INSUPPORTABLE IN LAW, WITHOUT PROPER BASIS, CONTRAR Y TO THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY AND IS LIA BLE TO BE DELETED. 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE HAS CONTENDED THAT THIS APPEAL WAS DISPOSED OF BY THE CIT(A) SUMM ARILY WITHOUT DEALING THE ISSUE ON MERIT, WHEREAS THE CIT(A) WAS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. DURING THE COURSE OF HEARING, ATTENTION WAS ALSO INVITED TO THE FACT THAT IDENTIC AL ISSUE WAS EXAMINED BY THE TRIBUNAL IN THE ASSESSMENT YEAR 2007-08 OF WHICH CO PY PLACED ON RECORD. 3. LD. DR CONTENTION HAS ALSO AGREED THAT LET THIS MATTER BE SENT BACK TO THE CIT(A) WITH THE DIRECTION TO ADJUDICATE THE ISSUE I N LIGHT OF THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2007-08. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWER AUTHORITIES, I FIND THAT CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT DEALING THE ISSUE ON MERIT, WHEREAS HE WAS REQUIRED TO ADJUDICA TE THE ISSUE ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. I HAVE ALSO CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL AND I FIND THAT TRIBUNAL HAS EXAMINED THE IMPUGNED ISSUE IN EARLIER YEARS I.E. ASSESSMENT YEAR 2007-08 OF WHICH COPY IS PLACED ON RECORD. I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND RESTOR E THE MATTER TO HIS FILE WITH THE DIRECTION TO READJUDICATE THE ISSUE AFRESH ON M ERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE L IGHT OF ORDER OF THE TRIBUNAL IN ITA NO. 377/LKW/2011 FOR THE ASSESSMENT YEAR 200 7-08. 3 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- (S.K. YADAV ) JUDICIAL MEMBER DATED: 14/07/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGIS TRAR