Gayatri Pandey Legal Heir of Late Sri Om Narain Pandey, Kanpur V. Income Tax Officer, Kanpur

ITA 135/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4434 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 17-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. P. K. BANSAL, ACCOUNTANT MEMBER ITA NO.135/LKW/2016 ASSESSMENT YEAR:2004-05 GAYATRI PANDEY L/H OF LATE SHRI OM NARAIN PANDEY 32/130, MANIRAM BAGAI KAN P UR V. INCOME TAX OFFICER WARD 1(3) KANPUR T AN / PAN:AUPPP8621F (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRADEEP SETH, C.A. RES P ONDENT B Y : SHRI NEIL JAIN, D.R. DATE OF HEARIN G : 19 04 2016 DATE OF P RONOUNCEMENT: 27 04 2016 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1) THAT THE LEARNED G.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL EX-PARTE FOR DEFAULT IN A SUMMARY MANNER WITHOUT ALLOWING THE ASSESSEE STATUTORY OPPORTUNITY OF BEING HEARD. 2) THAT THE LEARNED C.I.T.(APPEALS) HA S FURTHER ERRED IN LAW AND ON FACTS IN PROCEEDING TO DECIDE THE APPEAL EX-PARTE ON THE GROUND THAT THE NOTICES DETAILED IN THE APPELLATE ORDE R ISSUED FOR HEARING OF APPEAL HAD NOT BEEN COMPLIED WITH NOR ANY REQUEST FOR ADJOUR NMENT WAS FILED. SUCH NOTICES ISSUED BY THE PREDECESSOR OF THE LEARNED C.I.T.(APPEALS) WHO PASSED THE ORDER AND BY THE PRESENT INCUMBENT C.I.T. WHICH WERE DULY RESPONDED AND APPLICATION FOR AD JOURNMENT WAS FILED ARE DATED 02.05.2013 SERVED THRO UGH THE A.O. FIXING 05.06.2013 WHICH WAS :-2-: ADJOURNED TO 25.07.2013 ON ASSESSEE' S REQUEST ENCLOSING THEREWITH THE COPY OF DEATH CERT IFICATE OF THE ASSESSEE, NO TICE DATED 22. 12.2014 FIXING 07.01.2015 RECEIVED AND AD JOURNMENT APPLICATION FILED AND ADJOURNED TO 07.02.2015, NOTICE DATED 20.02.2015 FIXING 09.03.2015 WAS ATTENDED, ADJOURNMENT APPLICATION FILED AND APPEAL ADJOURNED TO 16.04.2015, NOTICE DATED 24.06.2015 ISSUED BY THE PRESENT INCUMBENT C.I.T.(APPEALS) FIXING 3RD JULY'2015 FOR HEARING ADJOURNMENT APPLICATION FILED ON 3RD JULY'2015 AND APPEAL ADJOURNED TO 28.07. 2015. ALL OTHER NOTICES MENTIONED IN THE ORDER WERE NEVER RECEIVED BY THE ASSESSEE. 3) THAT THE LEARNED C.I.T.(APPEALS) HA S FURTHER ERRED IN LAW AND ON FACTS IN NOT DECIDING THE APPEAL ON MERIT AS REQUIRED BY LAW AN D IN NOT STATING FACTS REGARDING EACH GROUND OF A PPEAL AND HIS DECISION THEREON NOR DETAILED REASONS FOR HIS DECISION IN RE SPECT OF EACH GRO UND AS REQUIRED BY THE PROVISIONS OF SECTION 250(6) OF THE I.T. ACT A ND PRINCIPLES OF NATURAL JUSTICE. 4) THAT THE LEARNED C.I.T.(APPEALS) HAS FURTHER ERRED IN LAW AND THE FACTS IN IGNORING THAT THE FACTS OF THE CASE HAD BEEN STATED IN DETAIL IN THE ASSESSMENT ORDER WHICH CONSTITUTE D MATERIAL FOR DECIDING THE APPEAL ON MERIT. 5) WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE LEARNED C.IT.(APPEALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE FOLLOWING ADDITIONS U/S 68 OF THE IT. ACT: (I) RS. 5,80,000/ - RELATING TO CREDITS IN THE ACCOUNT OF OM INDUSTRIES AND NEERAJ & BROS. (II) RS.8,22,000/- RELATING TO ADVANCES FROM CUSTOMERS, (III) RS.1,16,944/- ADVANC ES FROM GANGA NARAIN MISHRA, CHANDRA BHAL SINGH AND SHREE NA RAIN BAJPAI FOR PURCHASES. 6) THAT THE APPELLATE ORDER IS ARBITR ARY, UNJUST, EXCESSIVE, BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, TH E LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION :-3-: THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE WITHOUT DEALING WITH THE ISSUES ON MERIT WHEREAS AS PER LAW TH E LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN TH E INTEREST OF JUSTICE, TH E ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MA Y BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. 3. THE LD. D.R. HAS ALSO AG REED TO THIS SUBMISSI ONS OF THE LD. COUNSEL FOR THE ASSESSEE, AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WI THOUT DEALING WITH THE IS SUES ON MERIT. WE ARE, THEREFORE, OF THE VI EW THAT SINCE THE LD. CIT( A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DE SERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF TH E LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE -ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [P. K. BANSAL] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:27 TH APRIL, 2016 JJ:1703 :-4-: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR