Gulab Singh , Hyderabad V. Income Tax Officer, Ward-7(2), Hyderabad

ITA 1518/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7559 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-03-2021
• Assessment Year: 2005-2006
• Appeal Filed On: 09-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 271(1)(c)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH SMC, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.1518/HYD/2019 A.Y. 2005 - 06 GULAB SINGH, HYDERABAD. PAN: AUCPS 7305 N VS. INCOME TAX OFFICER, WARD - 7(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI MOHD. AFZAL REVENUE BY: SHRI M.N. MURTHY NAIK, DR DATE OF HEARING: 09/03/2021 DATE OF PRONOUNCEMENT: 23 /03/2021 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 3, HYDERABAD IN APPEAL NO.10027/CIT(A) - 3/HYD/2018 - 19, DATED 26/07/2019 PASSED U/S.271(1)(C) R.W.S 250(6) OF THE ACT FOR THE A.Y.: 20 05 - 06. 2. THE ASSESSEE HAS RAISED FIVE GROUNDS IN ITS APPEAL AND THEY ARE EXTR ACTED HEREIN BELOW FOR REFERENCE: - 1. THE ORDER OF THE LD. CIT(A) IS AGAINST THE LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF CASE. 2. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE DEPOSITS AMOUNTING TO RS. 12,38,408/ - ARE MADE OUT OF PART OF TURNOVER OF PARTNERSHIP FIRM NAMELY M/S. SRI SHAKTI WINES, THEREFORE, ERRED IN NOT DELETING THE PENALTY OF RS. 4,37,818/ - . 3. THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE A.O. LEVYING PENALTY OF RS. 4,37,818/ - U/S. 271(1)(C) OF THE ACT. 2 4. THE LD. CIT(A) OU GHT TO HAVE APPRECIATED THAT A PART OF THE TURNOVER OF A PARTNERSHIP CONCERN IN WHICH ASSESSEE WAS A PARTNER, WAS DEPOSITED IN THE SB ACCOUNT OF THE ASSESSEE, THEREFORE, ERRED IN CONFIRMING THE ORDER OF THE A.O. 5. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARTING OF THE APPEAL, IF IT IS CONSIDERED. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNIT Y TO THE ASSESSEE OF BEING HEARD. LD. AR FURTHER SUBMITTED THE LD. A.O. WAS ALSO NOT ACCORDED REASONABLE OPPORTUNITY TO THE ASSESSEE TO FILE HIS EXPLANATIONS BEFORE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. IT WAS THEREFORE PLEADED THAT AT THE MOST THE M ATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BE EN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR H IS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). THEREFORE THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RE CORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN 3 THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON SEVERAL OCCASIONS. HOWEVER, NONE APPEARED ON BEHAL F OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATES OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. IN THIS SITUATION, I DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVE R, CONSIDERING THE ISSUES INVOLVED IN THE APPEAL AND PRAYER OF THE LD. AR, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSES SEE OF BEING HEARD. AT THE SAME BREATH, I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON THE 23 RD MARCH, 2021. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 23 RD MARCH, 2021 OKK COPY TO: - 4 1) GULAB SINGH C/O. MOHD AFZAL, ADVOCATE, 402, SHERSONS RESIDENCY, 11 - 5 - 465, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD - 04. 2) INCOME TAX OFFICER, WARD - 7(2), SIGNATURE TOWERS, KONDAPUR, HYDERABAD. 3) THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, HYDERABAD. 4) THE PRINCIPAL COMMISSIONER OF INCOME TAX - 3, HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE