Shri Dilipkumar Kaplideo Singh, V. The Income Tax Officer, Ward-4, Bharuch

ITA 1455/AHD/2014

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1454 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 12-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Audi alteram partem
• Section: 13

Judgement Text

DILIPKUMAR KAPLIDEO SINGH VS. ITO, WARD-4, BHARUCH/ITA NO.1455/AHD/2014 FOR A.Y. 2009-10 PAGE 1 OF 5 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.1455/AHD/2014 [ [ / ASSESSMENT YEAR: 2009-10 DILIPKUMAR KAPLIDEO SINGH, C/O SINDHUJA TRADERS, PLOT NO 5002/1, GIDC INDL. ESTATE, ANKLESHWAR. [PAN: AZCPS 0996 C] V S . THE INCOME TAX OFFICER, WARD-4, BHARUCH. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI MAJU K.ISMAIL A.R. /REVENUE BY SMT. ANUPAMA SINGLA SR.DR / DATE OF HEARING: 11.12.2019 /PRONOUNCEMENT ON: 13.12.2019 /O R D E R PER SANDEEP GOSAIN, JM: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-VI, BARODA DATED 03.02.2014 FOR THE ASSESSMENT YEAR 2009-10. 2. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSMENT U/S.143(3) R.W.S. 144 OF THE I.T.ACT WAS PASSED AGAINST THE ASSESSEE. 3. AGGRIEVED BY THE ORDER PASSED BY THE LD.ASSESSING OFFICER(AO), THE ASSESSEE PREFERRED THE APPEAL BEFORE THE LD.CIT(A). THE LD.AUTHORISED DILIPKUMAR KAPLIDEO SINGH VS. ITO, WARD-4, BHARUCH/ITA NO.1455/AHD/2014 FOR A.Y. 2009-10 PAGE 2 OF 5 REPRESENTATIVE (AR) FOR THE ASSESSEE MENTIONED THE REASONS FOR HIS NON- APPEARANCE AND NON-SUBMISSION OF DOCUMENTS BEFORE THE LD.AO. 4. THE ASSESSEE ALSO FILED APPLICATION FOR ADDITIONAL EVIDENCE BEFORE THE LD.AO BY SUBMITTING THAT THE ASSESSEE HAD MAINTAINED ACCOUNTS AND BEFORE FILING THE RETURN. THE ACCOUNTS WERE AUDITED BY THE CHARTERED ACCOUNTANT(CA) ON 28.02.2009 AS WAS EVIDENT FROM THE CERTIFICATION OF THE CA. 5. ON THE REQUEST OF THE ASSESSEE FOR LEADING ADDITIONAL EVIDENCE, THE LD.CIT(A) SOUGHT REPORT FROM THE LD.AO. HOWEVER, THE LD.AO IN HIS REMAND REPORT SUBMITTED THAT THE NON-APPEARANCE AND NON-FILING OF THE DOCUMENTS AT THE TIME OF ASSESSMENT WERE INTENTIONAL ON THE PART OF THE ASSESSEE AND IT WAS ALSO SUBMITTED BY THE LD.AO THAT THE RETURN OF INCOME WAS FILED WITH NO ACCOUNTS, THEN HOW THE ASSESSEE HAS NOW FURNISHED COPY OF AUDITED REPORT AT THE APPELLATE STAGE. THEREFORE, IT APPEARS THAT THE SAID AUDIT REPORT IS AN AFTERTHOUGHT AND THUS, CANNOT BE BELIEVED. 6. ON THE BASIS OF SAID REMAND REPORT, THE LD.CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 7. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENTS CITED BY THE PARTIES AND THE ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS, DILIPKUMAR KAPLIDEO SINGH VS. ITO, WARD-4, BHARUCH/ITA NO.1455/AHD/2014 FOR A.Y. 2009-10 PAGE 3 OF 5 WE FOUND THAT ASSESSEE HAD FILED STATEMENT OF FACTS CONTAINING THEREIN THAT HE IS A DEALER IN PLYWOOD IN THE STATE OF KERALA AND WAS ALSO PARTNER SINDHUJA TRADERS IN GUJARAT WHICH IS A FIRM ENTERED IN THE BUSINESS OF TRADING IN HARDWARE AND PLYWOOD. IT WAS SUBMITTED THAT THE ASSESSEE FILED I.T.RETURNS DATED 31.03.2010 WHICH WAS ON THE BASIS OF AUDIT REPORT 20.08.2009 PREPARED BY A CA IN KERALA. SINCE THE AUDIT REPORT WAS PREPARED IN KERALA, THEREFORE THE SAME COULD NOT BE FILED BEFORE THE LD.AO AT GUJARAT. IT WAS SUBMITTED THAT AT THE TIME OF ISSUANCE OF THE NOTICES BY THE LD.AO, THE ASSESSEE WAS HELD UP IN KERALA FOR A VERY LONG PERIOD OF TIME, BECAUSE OF CONSTRUCTION OF HOUSE AT ERNAKULAM DISTRICT, KERALA AND HENCE, COULD NOT ATTEND THE NOTICES AND ALSO COULD NOT FILE THE REPLIES. IT WAS ALSO SUBMITTED THAT THE ACCOUNTS OF THE ASSESSEE WERE AUDITED BY THE CA BEFORE FILING THE RETURN OF INCOME, BUT THE SAID DOCUMENTS COULD OF THE ACT BE PRODUCED, BECAUSE OF THE DETAILED REASONS MENTIONED IN THE APPLICATION AND THE STATEMENT OF FACTS PLACED ON FILE. AN ONLY BECAUSE OF THIS REASON, THE ADDITIONS WERE MADE BY THE LD.AO AND UPHELD BY THE LD.CIT(A). 8. AFTER CONSIDERING THE FACTS AND AFTER GOING THROUGH THE CONTENTS CONTAINED IN THE APPLICATIONS AS WELL AS ORDERS AND REPLIES FILED BY THE ASSESSEE, WE FIND THAT ALTHOUGH, ASSESSEE WAS NON-COOPERATIVE WITH THE DEPARTMENT AND HAD NOT ACTED DILIGENTLY AND PROMPTLY, THUS, ORDERS WERE PASSED AGAINST THE ASSESSEE. HOWEVER, FROM THE REMAND REPORT, DILIPKUMAR KAPLIDEO SINGH VS. ITO, WARD-4, BHARUCH/ITA NO.1455/AHD/2014 FOR A.Y. 2009-10 PAGE 4 OF 5 WE FOUND THAT THE LD.AO HAD NOT VERIFIED THE DOCUMENTS SENT BY THE LD.CIT(A) AND HAD MERELY ASSUMED THAT THE DOCUMENTS SUBMITTED BY THE ASSESSEE ARE AFTERTHOUGHT. ALTHOUGH, AS WE HAVE POINTED OUT EARLIER THAT WE ARE NOT CONVINCED WITH THE REASONS OR THE CAUSE SHOWED BY THE ASSESSEE FOR HIS NON-APPEARANCE BEFORE THE LD.AO BUT STILL CONSIDERING THE INTEREST OF JUSTICE, CONSIDERING THE PRINCIPLE AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF WHICH IS SIN QUA NON OF EVERY CIVILIZED SOCIETY THE RIGHT TO NOTICE, THE RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REFER ADVERT EVIDENCE, RIGHT TO EXAMINE, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY BE SHOWN TO THE OTHER PARTY AND REASONED DECISION OR SPEAKING ORDER IS MUST. WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF THE POWERS CONFERRED UNDER RULE 28 OF TRIBUNAL RULES. WE RESTORE BACK TO THE FILE OF THE LD.ASSESSING OFFICER TO PROVIDE ONE MORE OPPORTUNITY AND ALSO THEREBY TO CONSIDER ALL THE POINTS SO RAISED BY THE ASSESSEE. NEVERTHELESS TO MENTION, THAT ASSESSEE WILL CO-OPERATE IN THE APPEAL PROCEEDINGS AND APPEAR BEFORE THE LD.ASSESSING OFFICER FOR THE DECISION AFRESH SUBJECT TO A COST OF RS.3,000/- TO BE PAID TO THE PRIME MINISTERS NATIONAL RELIEF FUND IN THE INTEREST OF JUSTICE WITHIN 30 DAYS OF RECEIPT OF THIS ORDER. WE MAKE IT CLEAR THAT NON- ATTENDANCE WILL OF THE ASSESSEE BEFORE LD.ASSESSING OFFICER WILL ENTAIL DILIPKUMAR KAPLIDEO SINGH VS. ITO, WARD-4, BHARUCH/ITA NO.1455/AHD/2014 FOR A.Y. 2009-10 PAGE 5 OF 5 CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON, ACCORDINGLY, APPEAL OF THE ASSESSEE SET-ASIDE TO THE FILE OF LD.ASSESSING OFFICER FOR THE DECISION AFRESH. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 13-12-2019. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 13 TH DECEMBER , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT