N Kiran Choudhur, V. ITO, Rayagada

ITA 137/CTK/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96865 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA
• Assessee Lawyers: D K SHETH
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . . , & , BEFORE S/SHRI P.M.JAGTAP, ACCOUNTANT M EMBER & PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ' ./ ITA NO.137 /CTK/2014 ( # # # # $% $% $% $% / ASSESSMENT YEAR :2009-2010) N KIRAN CHOUDHURY, C/O. SRI N. MADHAB ROA, KOTHAPETA, RAYAGADA. VS. ITO, RAYAGADA, WARD, RAMAKRISHNA NAGAR,, RAYAGADA. ' ./ & ' ./PAN/GIR NO. AGAPN 4896 M ( ' /APPELLANT ) .. ( ()' / RESPONDENT ) # , , , , /ASSESSEE BY : SHRI D.K.SHETH $ , , , , /REVENUE BY : SHRI SUVENDU DUTTA #$- / DATE OF HEARING : 29 TH OCT. 2015 ./% /DATE OF PRONOUNCEMENT 30 TH OCT. 2015 0 0 0 0 / O R D E R PER PARTHA SARATHI CHAUDHURY, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD CIT(A), BERHAMPUR DATED 28.1.2014 ON THE FOLLOWING GROUNDS: FOR THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSMENT AS MADE U/S.144 OF THE I. T. ACT. IS ARBITRARY AND UNJ USTIFIED . FOR THAT THE ESTIMATE OF NET PROFIT BY APPLYING A R ATE OF 25% AS MADE BY THE LEARNED A.O. AND AS CONFIRMED BY THE LEARNED CO MMISSIONER IS HIGHLY UNJUSTIFIED AND OTHERWISE EXCESSIVE . FOR THAT THE ADDITION OF RS. 33,52,335/- AS MADE UNDER HEAD INCOME FROM OTHER SOURCES IS UNCALLED FOR , UNREASONABLE AND UNJUSTIFIED AND THE LEARNED COMMISSIONER IS NOT JUSTIFIED TO CONFIR M THE ADDITION . 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L. THE ASSESSEE FILED HIS RETURN OF INCOME ON 12.10.2009 SHOWING TOTAL INCOME OF RS. 1,64,610/-. THE ASSESSEE DERIVES ITA NO. 137/CTK/2014 ASSESSMENT YEAR :2009-2010 2 INCOME FROM FABRICATION BUSINESS. DURING THE COUR SE OF ASSESSMENT PROCEEDINGS, THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE BY WAY OF PRODUCTION OF BOOKS OF ACCOUNT OR BILLS AND VOUCHERS. THE AO COMPLETED T HE ASSESSMENT U/S.144 OF THE ACT DETERMINING THE TOTAL INCOME AT RS.36,02,350/-., IN TER ALIA, MAKING VARIOUS ADDITIONS/DISALLOWANCES. 3. AGAINST THE ORDER PASSED BY THE AO U/S.144 OF TH E ACT, AN APPEAL WAS FILED BEFORE THE LD CIT(A), WHO DISMISSED THE SAID APPEAL EXPARTE AND PARTLY ALLOWED THE ASSESSEES APPEAL VIDE HIS APPELLATE ORDER DATED 2 8.1.2014 AS THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTIC ES ISSUED FIXING THE HEARING OF THE APPEAL FROM TIME TO TIME. THE SAID ORDER OF THE LD CIT(A) IS NOW IMPUGNED BY THE ASSESSEE IN THE PRESENT APPEAL FILED BEFORE THE TRI BUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED CONTENTION RAISED BY THE LD COUNSEL FOR THE ASSESSEE BEFORE US IS THAT THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD CIT(A) WAS DUE TO SOME UNAVOIDABLE CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE AND PRAYED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSSESEE TO PURFORTH HIS CASE BEFORE T HE AO. KEEPING IN VIEW ALL THE FACTS OF THE CASE, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO GIVE SUCH OPPORTUNITY TO THE ASSESSEE. LD D.R. WOULD HAVE NO OBJECTION TO REMIT THE FILE TO THE LD AO. WE, ACCORDINGLY, SET ASIDE THE EXPARTE ORDER OF THE LD CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE AO FOR A DE-NOVO ASSESSMENT AFTER GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT TH E ASSESSEE TO CO-OPERATE WITH THE PROCEEDINGS BEFORE THE AO WITHOUT SEEKING ANY FURT HER ADJOURNMENT. HOWEVER, ITA NO. 137/CTK/2014 ASSESSMENT YEAR :2009-2010 3 KEEPING IN VIEW THE NON-COMPLAINT ATTITUDE OF THE A SSESSEE BEFORE THE AO AS WELL AS BEFORE THE LD CIT(A), WE ORDER FOR COST OF RS.5,00 0/- TO BE PAID BY THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /10/2 015 SD/- SD/- . . ,/P.M.JAGTAP , PARTHA SARATHI CHAUDHURY /ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK; #' DATED 30/10 /2015 B.K.PARIDA, SPS 0 0 0 0 ( ( ( ( 3% 3% 3% 3% / COPY OF THE ORDER FORWARDED TO : 0# 0# 0# 0# / BY ORDER, SR. PRIVATE SECRETARY, , / ITAT, CUTTACK 1. ' / THE APPELLANT : N KIRAN CHOUDHURY, C/O. SRI N. MADHAB ROA, KOTHAPETA, RAYAGADA 2. ()' / THE RESPONDENT. ITO, RAYAGADA, WARD, RAMAKRISHNA NAGAR,, RAYAGADA 3. 4 ( ) / THE CIT(A), BERHAMPUR 4. 4 / CIT , BHUBANESWAR 5. $5 (# , / DR, ITAT, CUTTACK 6. 6 7- / GUARD FILE. ) ( //TRUE COPY//