Janardan Prasad, Patna V. ACIT, Circle-4, Patna

ITA 142/PAT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9610 (ITAT-PATNA)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAU SHIK KUMAR DAS
• Assessee Lawyers: D V PATHY
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 142 /PAT. /2017 : ASSTT. YEAR : 2013 - 14 JANARDAN PRASAD, FLAT NO. 401, CAPITAL TOWER, FRASER ROAD, PATNA - 800001 VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 4 , PATNA (APPELLANT) (RESPONDENT) PAN NO. A A UPP9710E ASSESSEE BY : SH. D. V. PATHY, ADV. REVENUE BY : SH. KAUSHIK KUMA R DAS, SR. DR DATE OF HEARING : 13 .03 .201 8 DATE OF PRONOUNCE MENT : 14 .0 3 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25 .01.2017 OF LD. CIT( A ) - 2 , PATNA . 2 . FOLLOWING G ROUNDS HAVE BEEN RAISED IN THIS APPEAL: I) FOR THAT THE GROUNDS OF APPEAL HERETO ARE WITHOUT PREJUDICE TO EACH OTHER. II) FOR T HAT THE ORDER OF THE ID. ASSESSIN G OFFICER AND ALSO THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) - 2 IS BAD BOTH IN LAW AND ON FACTS. III) FOR T HAT THE ORDER OF THE ID. ASSESSIN G OFFICER LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) - 2 IS BASED ON PRESUMPTIONS, SURMISES AND CONJECTURES. IV) FOR THAT THE ORDER OF THE ID. ASSESSING OFFICER AND ALSO THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS) - 2 IS FURTHER VIOLATIVE OF THE SETTLED PRINCIPLES OF NATURAL JUSTICE IN AS MUCH AS NO OPPORTUNITY MUCH LESS ITA NO . 142 /PAT. /2017 JANARDAN PRASAD 2 ADEQUATE OPPORTUNITY WAS EVER AFFORDED TO THE APPLICANT TO FURNISH ITS DEFENCE IN COURSE OF PROCEEDINGS. V) FOR THAT THE ORDER OF ID. ASSESSING OFFICER AND ALSO THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 2 IS WHOLLY PERVERSE IN AS MUCH AS THE SAME ARE CONTRARY TO AND AT VARIANCE WITH THE MATERIALS AVAILABLE ON RECORDS. VI) FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) - 2 PATNA HAS ERRED IN DISMISSING THE APPEAL IN LIMINIE ON THE GROUND OF NON - COMPLIANCE TO THE NOTICES ISSUED BY HIM NOTWITHSTANDING THE FACT THAT THE FAILURE TO ENTER APPEARANCE IN APPELLATE PROCEEDING WAS DUE TO A REASONABLE CAUSE. VII) FOR THAT THE ID. ASSESSING OFFICER HAS ERRED IN DISALLOWING A SUM OF RS. 66,34,863.00 UNDER SECTION 80 (I A)OF THE ACT MERELY ON THE GROUND THAT THE APPELLANT IS AN INDIVIDUAL AND IS NOT ELIGIBLE TO CLAIM DEDUCTION UNDER THE SAID PROVISION OF LAW. VIII) FOR THAT THE ID. ASSESSING OFFICER HAS ERRED IN ADDING A SUM OF RS.19,93,640/ - MERELY ON THE GROUND THAT THE APPELLANT HAD FAILED TO ESTABLISH THE CREDIT WORTHINESS OF SHRI. NATHUNI PRASAD. IX) FOR THAT THE ID. ASSESS IN G OFFICER HAS ERRED IN DISALLOWING A SUM OF RS.1 ,05,02,245.00 UNDER SECTION 40 (A) (IA) OF THE ACT MERELY ON THE GROUND THAT TAX AT SOURCE WAS NOT DEDUCTED ON PAYMENTS MADE TO SUB - CONTRACTORS. X) FOR THAT IN ANY VIEW OF THE MATTER THE ORDER OF THE ID. ASSESSING OFFICER TO THE EXTENT AFORESAID IS OTHERW ISE BAD IN LAW AND AS SUCH ARE FIT TO BE SET ASIDE. XI) FOR THAT OTHER VARIOUS REASONS WHICH MAY BE URGED AT THE TIME OF HEARING. ITA NO . 142 /PAT. /2017 JANARDAN PRASAD 3 3 . FROM AB OVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE DISMISSAL OF THE APPEAL BY T HE LD. CIT(A) EX - PARTE IN LIMINE. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 01.10.2013 DECLARING A TOTAL INCOME OF RS. NIL. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND A NOTICE U/S 143 (2) OF THE IN COME TAX ACT, 1961 WAS ISSUED ON 15.09.2014. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.1,90,95,750/ - BY MAKING THE ADDITION OF RS.1,05,02,245/ - U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 AND RS.19,93,640/ - ON ACCOUNT OF UNSECURED LOANS. AGAINST THE SA ID ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL EX - PARTE IN LIMINE. 5 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO OPPORTUNITY OF BEING HEAR D WAS GIVEN BY THE LD. CIT(A) AND THE I SSUE HAS NOT BEEN DECIDED ON MERIT . 6. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECO RD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE EX - PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT DISCUSSING THE ISSUE ON MERIT . IT IS ALSO NOT BROUGHT ON RECORD THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF ITA NO . 142 /PAT. /2017 JANARDAN PRASAD 4 THE PRESENT CASE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PR ONO UNCED IN THE COU RT ON 14 /03/2018) SD/ - SD/ - (SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 /0 3 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITA T ASSISTANT REGISTRAR