Sh. Manoj Kumar Manchandani, Jhansi V. I.T.O., Ward- 6(2), Jhansi

ITA 135/AGR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60153 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUHAIL AKHTAR
• Keywords: Principle of natural justice; Set aside
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA BEFORE SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS.134 & 135/AGR/2012 ASSESSMENT YEARS : 2003-04 & 2004-05 RESPECTIVELY MANOJ KUMAR MANCHANDANI, VS. INCOME TAX OFFICER, 676, CHAMAN GANJ, WARD 6(2), JHANSI. SIPRI BAZAR, JHANSI. (PAN: ADUPK 1302 L). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVIN GARG, ADVOCATE RESPONDENT BY : SHRI SUHAIL AKHTAR, JR. D.R. DATE OF HEARING : 14.06.2012 DATE OF PRONOUNCEMENT : 14.06.2012 ORDER THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST THE COMMON ORDER DATED 22.11.2011 PASSED BY THE LD. CIT(A)-II, AGRA FOR AS SESSMENT YEARS 2003-04 & 2004-05. 2. COMMON GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN BOTH THE APPEALS EXCEPT FOR DIFFERENCE OF AMOUNT INVOLVED. FOR THE PURPOSE OF READY REFERENCE, GROUNDS OF APPEAL IN ITA NO.134/AGR/2012 FOR A.Y. 2 003-04 ARE REPRODUCED AS UNDER:- ITA NOS.134 & 135/AGR/2012 A.YS. 2003-04 & 2004-05 2 1. BECAUSE IN ANY VIEW, THE LD. CIT(A) HAS GROSSLY ERRED IN NOT ADJUDICATING AND CONSIDERING THE LEGAL GROUND NO.1, (AGAINST PROCEEDING U/S 147). 2. BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING AND CONSIDERING THE GROUND NO.4. 3. BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING AND CONSIDERING THE GROUND NO.5. 4.1 BECAUSE IN ANY VIEW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE IMPUGNED GROUND NO.2 & 3 I.E. AGAINST ADDITION RS.1 ,46,534/- EXPARTE. THE APPELLANT WAS UNDER THE BONAFIDE BELI EF THAT THE IMPUGNED APPEAL BEFORE LD. CIT(A), IS BEING DULY RE PRESENTED BY THE COUNSEL ENGAGED. 4.2 BECAUSE IN ANY VIEW, THE LD. CIT(A) HAS ERRED I N CONFIRMING THE ADDITION OF RS.1,46,534/-, AND BY NOT CONSIDERING/C ALLING THE ADJUDICATION IN APPEAL/APPEAL ORDER OF BASE ASSESSM ENT YEAR 2006- 07, W.R.T. THE ADDITION MADE IN RESPECT OF COST OF CONSTRUCTION DETERMINED BY THE DVO, ON THE BASIS OF WHICH THE PR OCEEDINGS U/S 147 WAS INITIATED IN THIS IMPUGNED EARLIER A.Y. 2003-20 04, AS SUBSTANTIAL RELIEF HAS BEEN GIVEN ON THIS ISSUE IN TOTALITY, BY THE LD. CIT(A) IN A.Y. 2006-07, VIDE ORDER DT. 20.04.2010, AND NO FURTHER APPEAL HAS BEEN FILED BY THE DEPARTMENT. 5. BECAUSE IN ANY VIEW, AND WITHOUT PREJUDICE TO TH E ABOVE GROUNDS, ADDITIONS MADE, INTEREST CHARGED, AND THE ASSESSMENT ORDER PASSED ARE WRONG, ILLEGAL, WITHOUT PROPER OPPORTUNI TY, BAD IN LAW AND AGAINST THE FACTS AND LAW OF THE CASE. 3. AT THE OUTSET, THE LD. REPRESENTATIVES OF THE PA RTIES SUBMITTED THAT ON IDENTICAL SET OF FACTS THE CASE HAS BEEN HEARD ON 1 2.06.2012 IN THE CASE OF SHRI HARISH CHANDRA MANCHANDANI. IT WAS FURTHER SUBMITT ED THAT THE FACTS OF THE CASE ITA NOS.134 & 135/AGR/2012 A.YS. 2003-04 & 2004-05 3 UNDER CONSIDERATION AND THE FACTS OF THE CASE OF SH RI HARISH CHANDRA MANCHANDANI ARE IDENTICAL. THEREFORE, THE SAID ORDER MAY BE FO LLOWED IN THESE APPEALS ALSO. 4. I HAVE HEARD THE LD. REPRESENTATIVES OF THE PART IES AND RECORDS PERUSED. I FIND THAT ON IDENTICAL SET OF FACTS, THE ISSUE HAS BEEN DECIDED IN ITA NOS.130 & 131/AGR/2012 IN THE CASE OF SHRI HARISH CHANDRA MAN CHANDANI, ORDER DATED 12.06.2012, AS UNDER:- 7. I HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. I FIND THAT THE ASSESSEE HAS RAISED LEGAL GROUND CHALLENGING ACTION OF THE A.O. IN INVOKING SECTION 147 OF THE A CT, BUT THE CIT(A) DID NOT ADJUDICATE THIS LEGAL GROUND. IT HAS ALSO BEEN NOTICED THAT THE CIT(A) DECIDED THE MERIT CONSIDERING THE MATERIAL O N RECORD AS THE ASSESSEE DID NOT PUT HIS PRESENCE BEFORE HIM. THOU GH THE CIT(A) HAS PROVIDED OPPORTUNITY OF HEARING, BUT THE ASSESSEE F AILED TO MAKE COMPLIANCE OF THOSE NOTICES. THE CONTENTION OF THE ASSESSEE WAS THAT THE PRESENCE COULD NOT BE MADE BEFORE THE CIT(A) DU E TO INADVERTENT MISTAKE WITHOUT BAD INTENTION. HOWEVER, THE ASSESS EE WAS HAVING NO SUFFICIENT REASON FOR NOT APPEARING BEFORE THE CIT( A), BUT CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, I FIND IT APPROPR IATE TO SEND BACK THE MATTER TO THE FILE OF THE CIT(A) TO ADJUDICATE THE LEGAL GROUND AND ALSO GROUNDS ON MERIT AFRESH IN ACCORDANCE WITH LAW, AFT ER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. FOLLOWING THE ABOVE ORDER, THESE APPEALS ARE ALS O SET ASIDE TO THE FILE OF THE CIT(A) WITH IDENTICAL DIRECTIONS. ITA NOS.134 & 135/AGR/2012 A.YS. 2003-04 & 2004-05 4 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 14.06.2012) SD/- (A.L. GEHLOT) ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY