Uttamkumar Chandrakant Wagh, Latur V. Dy. CIT, Nanded

ITA 150/PUN/2013

• Counselvise Citation: 15024514 RSA 2013
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 15-01-2013
• Court: TRIBUNAL
• Assessee Lawyers: K SRINIVASAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.150/PN/2013 & (ASSTT. YEAR : 2004-05) SHRI UTTAMKUMAR C.WAGH, C/O SHRENIL V GANDHI & CO., 8/9, OLD GUL MARKET, 1 ST FLOOR, NANDED ROAD, LATUR 413512. .. APPELLANT PAN: AAMPW5211H VS. DCIT, CIRCLE-3, NANDED. .. RESPONDENT ITA.NO.1559/PN/2011 (ASSTT. YEAR : 2004-05) ACIT, CIRCLE-3, NANDED. .. APPELLANT VS. SHRI UTTAMKUMAR C.WAGH, LATUR YAMUNA SOCIETY, RAJIV GANDHI CHOWK, LATUR 413512. .. RESPONDENT PAN: AAMPW5211H AND C.O.NO.04/PN/2013 (ARISING OUT OF ITA.NO.1559/PN/2011) (ASSTT. YEAR : 2004-05) SHRI UTTAMKUMAR C.WAGH, C/O SHRENIL V GANDHI & CO., 8/9, OLD GUL MARKET, 1 ST FLOOR, NANDED ROAD, LATUR 413512. .. APPELLANT PAN: AAMPW5211H VS. DCIT, CIRCLE-3, NANDED. .. RESPONDENT ASSESSEE BY : SHRI K.SRINIVASAN DEPARTMENT BY : SMT.SHAILJA RAI DATE OF HEARING : 03.04.2013 DATE OF PRONOUNCEMENT : 25.04.2013 2 ORDER PER SHAILENDRA KUMAR YADAV, JM : ALL THESE APPEALS AND CROSS OBJECTION PERTAINS TO THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR. SO THEY ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA.NO.150/PN/2013 2. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAIN ST THE ORDER OF THE CIT(A) ON FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED HON. COMMISSIONER OF INCOME (APPEALS), AURANGABAD H AS ERRED IN PASSING THE ORDER EX-PARTE AND CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT O F NON- ATTENDANCE AND WITHOUT CONSIDERING THE ADJOURNMENT APPLICATION SENT BY THE APPELLANT FIRM. 2. WITHOUT PREJUDICE TO ABOVE, THE HON. C.I.T.(APPEAL) OUGHT TO HAVE CONSIDERED ON MERIT THE ADDITIONS MADE AND DEL ETE THE SAME AS THE ADDITION IN OVERLAPPING AND IGNORING FA CTS ON THE RECORD. 3. THAT HON. TRIBUNAL MAY DELETE THE ENTIRE ADDITION O R GIVE APPROPRIATE RELIEF. 3. AT THE OUTSET OF HEARING THE LD. AUTHORISED REPR ESENTATIVE POINTED OUT THAT THE CIT(A) WAS NOT JUSTIFIED IN PA SSING THE EX-PARTE ORDER BY INVOKING THE DECISION OF THE ITAT DELHI BE NCH IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320 AND THE DECISION OF THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR 223 ITR 480. SO THE ORDER OF THE CIT(A) BEING NON-SPEAKING BE SET ASIDE. THE LD. DEPARTMENTAL RE PRESENTATIVE SUPPORTED THE ORDER OF THE CIT(A) AND SUBMITTED THA T THE CIT(A) WAS JUSTIFIED IN PASSING THE EX-PARTE ORDER IN VIEW OF NON-COOPERATION ON BEHALF OF THE ASSESSEE. THEREFORE, SAME SHOULD BE UPHELD. 3 4. AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND MA TERIAL ON RECORD, WE FIND THAT THE CIT(A) HAS DISMISSED THE A PPEAL BY EX-PARTE AT THE STRENGTH OF DECISION OF ITAT DELHI BENCH IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320 AND THE DECISION OF THE HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR 223 ITR 480. THE FACT REMAINS THA T THE CIT(A) HAS PASSED EX-PARTE ORDER. IT IS RIGHT THAT THE CIT(A) CAN PASS AN EX-PARTE ORDER IN CASE ASSESSEE IS NOT COOPERATING AS IN THIS CASE BUT AT THE SAME TIME HE IS SUPPOSED TO PASS SPEAKIN G ORDER, WHICH IS MISSING IN THIS CASE. ACCORDINGLY, WE SET ASIDE THE NON-SPEAKING ORDER PASSED BY THE CIT(A) AND RESTORE THE MATTER T O HIM WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AF TER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. AT THE SAM E TIME ASSESSEE SHOULD COOPERATE IN THE PROCEEDINGS BEFORE THE CONC ERNED CIT(A). SINCE WE ARE RESTORING THE MATTER ON TECHNICAL ISSU E, SO WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 5. AS A RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ITA.NO.1559/PN/2011 & CO NO.04/PN/2013 6. THIS PENALTY APPEAL AND THE CROSS OBJECTION ARE ARISING FROM THE QUANTUM APPEAL IN ITA.NO.150/PN/2013. SINCE WE HAVE SET ASIDE THE QUANTUM PROCEEDINGS IN ITA.NO.150/PN/2013 VIDE PARA 4 OF THIS ORDER, AS A CONSEQUENCE TO THAT ORDER OF CI T(A) PERTAINING TO THE PENALTY IN ITA.NO.1559/PN/2011 AND CO NO.04/PN/ 2013 ARE ALSO SET ASIDE TO THE ASSESSING OFFICER WITH A DIRE CTION TO DECIDE THE SAME AS PER FACT AND LAW AND IN FINAL OUTCOME IN TH E QUANTUM APPEAL BY THE CIT(A). SINCE WE ARE RESTORING THE M ATTER ON TECHNICAL ISSUE, SO WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 4 7. AS A RESULT, THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISPOSED OFF AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF APRIL, 2013. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 25 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ACIT, CIRCLE-3, NANDED. 3. THE CIT(A), AURANGABAD. 4. THE CIT, AURANGABAD. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.