Surya Prakash Awasthi, Kanpur V. Asstt. Commissioner of Income Tax-III, Kanpur

ITA 154/LKW/2014

• Counselvise Citation: 15423714 RSA 2014
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 13-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: JINTENDRA PANDEY
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.154/LKW/2014 ASSESSMENT YEAR:2008-09 SURYA PRAKASH AWASTHI 148-A, PANKI ROAD KALYANPUR, KANPUR V. ACIT-III KANPUR TAN/PAN:AEFPA1924C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. JINTENDRA PANDEY, C.A. RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 03 12 2014 DATE OF PRONOUNCEMENT: 10 12 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. BECAUSE THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACT BY PASSING THE ORDER AS EX-PARTE ORDER WITHOUT CONSIDERING THE FACT THAT NO NOTICE HAS BEEN SERVED ON THE ASSESSEE AND THE REASON BEHIND NON APPEARANCE WAS HIS ILL HEALTH DUE TO WHICH HE WAS TOTALLY UNAWARE ABOUT THE NOTICES SO FAR. 2. BECAUSE THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACT BY MAKING THE ADDITION ON ASSUMPTION BASIS WHICH IS ITSELF CONTRADICTORY OF HIS OWN VERDICT GIVEN AT THE TIME OF CANCELLING THE ADDITION MADE BY A.O. ON ESTIMATION BASIS@ 9%. 3. BECAUSE THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACT BY MAKING THE ADDITION UNDER LABOUR CHARGES AND SUNDRY CREDITORS ON GUESS, SURMISE AND CONJECTURE BASIS BY BRUSHING THE FACT OF :- 2 -: THE CASE. 4. BECAUSE THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACT BY PASSING A HIGH PITCH ORDER ON ASSUMPTION BASIS AND FAR FROM MATERIAL FACT WHICH REQUIRES TO BE RE-CONSIDERED IN THE INTEREST OF THE JUSTICE. 5. BECAUSE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE THE JUSTICE SHOULD NOT BE DENIED AND THE ORDER OF THE ID. CIT (APPEAL) REQUIRED TO QUASHED. 6. BECAUSE THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACT THAT THE APPELLANT HAS PROPERLY MAINTAINED ITS BOOKS OF ACCOUNTS AND ALSO GOT IT AUDITED AS PER THE PROVISION OF THE INCOME TAX ACT U/S 44 AB AND ALL THE BILLS AND VOUCHERS THROUGH WHICH THE CASH BOOK IS SUPPLEMENTED WOULD HAVE BEEN EXAMINED BY THE CHARTERED ACCOUNTANT BEFORE GIVING HIS TAX AUDIT REPORT AND THEREBY THE ADDITION IS ON WHIMSICAL BASIS-WHICH REQUIRED TO BE QUASHED. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT NO NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE FROM THE LD. CIT(A) AND THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION THAT IN THE ENTIRE ORDER, THE LD. CIT(A) HAS NOT GIVEN ANY FINDING WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE IMPUGNED ISSUES AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). :- 3 -: 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE LD. CIT(A) HAS FIXED THE APPEAL FOR HEARING ON TWO DATES I.E. 25.7.2012 AND 9.8.2012, BUT NOTHING HAS BEEN RECORDED IN THE ORDER OF THE LD. CIT(A) REGARDING SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. IN THE ABSENCE OF CATEGORICAL FINDING WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE, IT APPEARS THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL OF THE ASSESSEE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AND HENCE THE ORDER OF THE LD. CIT(A) DESERVES TO BE SET ASIDE AND THE MATTER IS TO BE RESTORED BACK TO HIS FILE FOR RE-ADJUDICATION OF THE APPEAL ON MERIT. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES INVOLVED IN THE APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORT OF CO-OPERATION TO THE LD. CIT(A) IN DISPOSAL OF THE APPEAL. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH DECEMBER, 2014 JJ:0312 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR