Shri Jayant Jitendra Biswas, Ahmedabad V. The ACIT, Circle-6, Ahmedabad

ITA 1505/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1053 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 1505/AHD/2013 / ASSESSMENT YEAR : 2009-10 SHRI JAYANT JITENDRA BISWAS, 29, ONGC NAGAR SOCIETY, RANIP, AHMEDABAD-382480 PAN : ACQPB 2671 J VS ACIT, CIRCLE-6, AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVATIA, AR REVENUE BY : SHRI ANTONY PARIATH, SR DR / DATE OF HEARING : 08/07/2016 / DATE OF PRONOUNCEMENT: 21/07/2016 / O R D E R THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XI, AHMEDABAD DATED 13.03.2013 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN THIS APPEAL ARE TO THE EFF ECT THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN :- (I) PASSING THE APPELLATE ORDER ON EX-PARTE BASIS. THE ASSESSEE HAS SUFFICIENT CAUSE FOR FAILURE TO ATTEND OR SEEK ADJOURNMENT ON 07.03.2013; (II) CONFIRMING THE DISALLOWANCE OF COMMISSION EXPENSES OF RS.19,04,000/-. 3. BRIEF FACTS OF THE CASE ARE THE LD. CIT(A) HEL D THAT THE ASSESSEE HAS FAILED TO REMAIN PRESENT IN APPEAL PROCEEDINGS; CONSEQUENTLY EX- PARTE ORDER ON MERITS WAS PASSED BY FOLLOWING OBSERVATIO NS:- SMC-ITA NO. 1505/AHD/2013 SHRI JAYANT JITENDRA BISWAS VS. ACIT AY : 2009-10 2 2. DURING THE APPELLATE PROCEEDINGS NOTICE OF HEAR ING WAS ISSUED BY THIS OFFICE ON 21.12.2012. VIDE THIS NOTICE THE HE ARING CASE WAS FIXED FOR 18.01.2013. ON 18.01.2013 THE APPELLANT PRAYED FOR ADJOURNMENT. THE CASE WAS ADJOURNED TILL 5.02.2013. ON THIS DAT E ALSO THE APPELLANT PRAYED FOR ADJOURNMENT. THE CASE WAS FINALLY ADJOU RNED TILL 26.02.2013. ON 26.02.2013 THE APPELLANT PRAYED FOR ANOTHER ADJOURNMENT. THE CASE WAS ADJOURNMENT TILL 1.3.201 3. ON THIS DATE ALSO THE APPELLANT PRAYED FOR ADJOURNMENT. THE CAS E WAS ADJOURNED TILL 07.03.2013. ON THE APPOINTED DATE NEITHER ANYBODY APPEARED FOR THE APPELLANT NOR ADJOURNMENT APPLICATION WAS RECEIVED. THE ABOVE FACTS CLEARLY INDICATE THAT SUFFICIENT OPPORTUNITIES OF H EARING WAS GIVEN TO THE APPELLANT DURING APPELLATE PROCEEDINGS, HOWEVER, TH E APPELLANT HAD NOT MADE GOOD USE OF THESE OPPORTUNITIES. APPARENTLY T HE APPELLANT IS NOT INTERESTED TO PROSECUTE THIS APPEAL FURTHER, ACCORD INGLY THIS APPEAL IS ADJUDICATED ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD. THE GROUNDS OF APPEAL RAISED IN THE APPEAL MEMO ARE DEALT WITH IN THE SUCCEEDING PARAGRAPHS:- 3.1 THE ADDITION MADE BY THE ASSESSING OFFICER WAS CONFIRMED BY LD. CIT(A) AFTER CONSIDERING THE MERITS OF THE CASE , BY FOLLOWING OBSERVATIONS:- 2.3 IN RESPECT OF OTHER PERSONS TO WHOM COMMISSI ON WAS PAID THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS HAS FAILED TO FURNISH ANY COGENT EVIDEN CE TO ESTABLISH THE FACT OF SERVICES RENDERED. IN FACT THE A.O. HAS POI NTED OUT A SPECIFIC DEFECT IN THE BOOKS OF ACCOUNTS OF THE APPELLANT. I N THE BANK ACCOUNT OF THE APPELLANT BEARING NO.03838640000015 WITH HDFC B ANK, THE APPELLANT HAS SHOWN PAYMENT OF COMMISSION TO ONE VR AJESH SHAH. THE COMMISSION OF RS. 2,50,000/- WAS PAID TO HIM VIDE C HEQUE NO.385432 ON 21.10.2008. HOWEVER, THIS COMMISSION PAYMENT HAS NOT BEEN ACCOUNTED FOR IN THE COMMISSION ACCOUNT. THE APPELL ANT HAS ALSO NOT FURNISHED CONFIRMATION FROM SHRI VRAJESH MEHTA. THE APPELLANT HAS ALSO FAILED TO FILE ANY RECONCILIATION IN RESPECT O F THIS DISCREPANCY. SINCE THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE TO PROVE THE SERVICES RENDERED BY THE OTHER COMMISSION AGENTS, ACCORDINGL Y, I HOLD THAT COMMISSION TO THESE COMMISSION AGENTS WERE PAID FOR NON-BUSINESS PURPOSES AND THE SAME DESERVES TO BE DISALLOWED. RE LIANCE IN THIS REGARD WAS PLACED ON VIJAYKUMAR MILLS LTD. VS CIT 5 0 ITR 332(MAD), SMC-ITA NO. 1505/AHD/2013 SHRI JAYANT JITENDRA BISWAS VS. ACIT AY : 2009-10 3 VISHNU AGENCIES PVT. LTD. VS CIT 117 ITR 754 (KOL), NEEMLA TEXTILE FINISHING MILLS PVT. LTD. VS CIT 100 ITR 611 (P & H ), PRECISION ELECTRONICS LTD. VS DCIT (2007) 164 TAXMAN 67 (DEL). 2.4 IN VIEW OF ABOVE FACTS, I HOLD THAT THE COMMIS SION PAYMENT OF RS.19,04,000/- IS FOR NON-BUSINESS PURPOSES. THE DISALLOWANCE OF THE COMMISSION PAYMENT OF RS. 19,04,000/- IS CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 4. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT ON TH E LAST DATE OF HEARING ON 07.03.2013 BEFORE LD. CIT(A), NOBODY COU LD ATTEND OR SEEK ADJOURNMENT BECAUSE SHRI JAYESH BHATT, CA WAS OUT OF STATION AND HIS OFFICE CLERK SHRI ABHAY JOSHI WHO LOOKS AFTER AND AT TEND TO THE INCOME- TAX WORK IN THE OFFICE COULD NOT SEEK ADJOURNMENT D UE TO HIS SOCIAL PROBLEM. SINCE IT WAS A TIME BARRING PERIOD AND TH ERE WAS HEAVY PRESSURE OF ASSESSMENT AS WELL AS RECOVERY PROCEEDI NGS, THERE COULD NOT BE MADE ANY FOLLOW-UP IN THE MATTER. THUS THERE WAS SUFFICIENT CAUSE FOR FAILURE TO ATTEND ON 07.03.2013. 4.1 LD. COUNSEL FURTHER CONTENDS THAT IF THE ASSESS EE IS NOT GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD, IT WILL CAUSE IRREPARABLE LOSS TO THE ASSESSEE; BESIDES, THE ADDITION HAS BEEN MADE A ND CONFIRMED WITHOUT ADEQUATE HEARING. IN THE ALTERNATIVE, LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT SUITABLE COST MAY BE IMPOSED AND THE APPEAL MAY BE RESTORED TO LD. CIT(A) TO DECIDE THE SAME AF RESH ON MERITS. 5. LD. DEPARTMENTAL REPRESENTATIVE IS HEARD. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. IN THE INTEREST OF SUBSTANTIAL JUSTICE, A COST OF RS.10,00 0/- (RS. TEN THOUSAND SMC-ITA NO. 1505/AHD/2013 SHRI JAYANT JITENDRA BISWAS VS. ACIT AY : 2009-10 4 ONLY) IS IMPOSED ON THE ASSESSEE FOR BEING RECALCIT RANT IN PURSUING THE FIRST APPEAL. THE APPEAL IS RESTORED BACK TO THE FI LE OF LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING THE ASSESSEE DUE OPPORTUNITY OF BEING HEARD. THE PROOF OF PAYMENT OF COST SHOULD BE PRODUCED BEFORE THE LD. CIT(A) IN THE FIRST HEARING. THE ASSESSEE U NDERTAKES TO DULY AND DILIGENTLY CO-OPERATE IN THE APPELLATE PROCEEDINGS, FAILING WHICH PROPER ACTION WILL BE TAKEN BY THE LD. CIT(A). SIN CE I AM RESTORING THE MATTER BACK TO THE FILE OF LD. CIT(A), I AM REFRAIN ING TO COMMENT ON MERITS OF THE ISSUE AT HAND. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 21 ST JULY, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 21/07/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD