Mohd. Amaan, Gorakhpur V. ITO, Ward - 2(3), Gorakhpur

ITA 162/VNS/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9684 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 10-07-2019
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 250; 145(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.162 /VNS/2019 Assessment Year: 2011-12 Mohd Amaan, Prop. M/s Zohra Ultrasound, Barhalganj, Gorakhpur PAN-ACBPA9554E v. Income Tax Officer, Ward-2(3), Gorakhpur (Appellant) (Respondent) Appellant by: Sh. Ashish Bansal, Adv Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 23.05.2022 Date of pronouncement: 07.06.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 8.4.2019 of CIT(A) for the assessment year 2010-11. The assessee has raised the following grounds:- “1. Because the CIT(A) has erred in law and on facts in deciding the appeal ex-parte and in upholding an addition of Rs. 1,88,070/- as had been made in the assessment on account of difference in the estimated gross receipts and the amount disclosed by the appellant, from ultrasound during the year. 2. Because on the facts and circumstances of the case, it could not have been said or held that notice of hearing of appeal had been duly served on the appellant owing to which order passed by the CIT(A) is not sustainable either on facts or in law. 3. Because looking to the facts and circumstances of the case, particularly that; (a) the gross receipts for which regular books of account and other records were maintained was duly accepted and action under section 145(3) having not been invoked by the ld. Assessing Officer; (b) complete details of the patients are recorded in the register maintained for this purposes and on this basis this register, reports of the patients are kept in track; (c) receipts are issued to the patients for the services availed by them Accordingly there remained no basis/justification for the enhancement by the ld. Assessing Officer and the ld. CIT(A) should have deleted the same. ITA No.162/VNS/2019 Mohd Amaan 2 4. Because the CIT(A) has erred in law and on facts in upholding the enhanced estimate of gross receipts towards ultrasound done at the appellant’s diagnostic center run by him as per particulars given below:= Receipts under the head Assessee’s version of gross receipts Estimate made by the Assessing Officer Ultrasound 14,42,130 16,30,200 [19 x 275 x 26x12] Average No. of patients per day X Rate per ultrasound X no. of working days in a month x no. of months in a year and in sustaining an addition of Rs. 1,88,070/- as had been added by the ld. Assessing Officer. 5. Because number of cases as had been handled by the appellant were duly recorded in the records maintained in regular course and no discrepancy or defects having been found in such records, the appellant’s version with regard to the receipts from them was liable to be accepted and no interference / enhancement was called for either on facts or in law, merely on the ground that the name of the patient and other details are not mentioned on the receipts issued to the patients by the appellant during the year. 6. Because in any case the estimated addition of Rs. 1,88,070/- as above, are based on incorrect assumption and grounds and the same are not sustainable. 7. Because the order appealed against is contrary to the facts, law and principles of natural justice.” 2. The learned AR of the assessee has argued at length and submitted that the Assessing Officer has estimated the income of the assessee by extrapolating the receipts from ultrasound per patient per day and multiplied for 30 days in a month and taking the average number of the patients at 19 per day which is contrary to the details as recorded in the register maintained by the assessee. The assessee also produced the cash books as well as bills and vouchers in support of the correctness of the total receipts as recorded in the books of accounts. Thus the ITA No.162/VNS/2019 Mohd Amaan 3 learned AR has submitted that the estimation made by the Assessing Officer is highly arbitrary without any basis when assessee has recorded the actual receipts in the books. Thus the addition made by the Assessing Officer and confirmed by the ld. CIT(A) is unjustified and liable to be deleted. 3. On the other hand, learned DR has submitted that no evidence was produced by the assessee in support of the gross receipt declared by the assessee. The Assessing Officer has applied a reasonable basis for estimation of the gross receipts. In support of his contention he has relied upon various case laws wherein the estimation made by the Assessing Officer is upheld including the decision of Hon'ble jurisdictional High Court in the case of Commissioner Of Income-Tax vs Surjit Singh Mahesh Kumar 210 ITR 83. The learned DR has further submitted that since the CIT(A) has not decided the appeal on merits due to non-appearance of the assessee therefore, the assessee has failed to produce any record even at the stage of the first appeal. He has relied upon the orders of the authorities below. 4. I have considered the rival submissions and carefully perused the impugned order of the CIT(A).The CIT(A) has dismissed the appeal of the assessee in limine for want of prosecution in para 4 to 6 as under:- “4. In appellate proceedings several opportunities were allowed to the appellant. Notices were issued to the appellant fixing the appeal for hearing as per provisions of Section 250 of the I.T. Act, 1961. There was no compliance on part of the appellant till date. The details of opportunities provided to the appellant in the case are tabulated as under: Date of Notices issued Date of hearing fixed Remarks 08.11.2017 30.11.2017 Adjourned filed 18.01.2018 29.01.2018 None attended 19.02.2018 07.03.2018 None attended 25.10.2018 13.11.2018 None attended 15.11.2018 12.12.2018 None attended ITA No.162/VNS/2019 Mohd Amaan 4 5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interest in prosecution of the present appeal and same is laible to be dismissed on this ground itself. The embodies in well-known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENINUNT”. In view of the above mentioned facts and by placing reliance on decision of Hon'ble I.T.A.T., Delhi Bench in case of CIT Vs. Multiplan Indian ltd. reported in 38 ITD 320 and decision of Hon'ble MP High Court in case of Estate of Late Tukoji Rao Holkar Vs. CWT 91997) reported in 223 ITR 480 the present appeal to be dismissed. Accordingly, I have no reasons to interfere with the assessment order passed by the Assessing Officer. The action of the Assessing Officer is upheld. Grounds of appeal are dismissed. 6. After considering the material on record and due consideration of submission made by appellant while filing the appeal against the Assessment Order the appeal of appellant has not been allowed accordingly the order of Assessing Officer being upheld.” 5. Thus, it is clear that the CIT(A) has not decided the appeal of the assessee on merits and dismissed the same summarily for non prosecution which is contrary to the provisions of section 250(6) of the Income Tax Act. Accordingly, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the appeal of the assessee on merits by a speaking order after granting one more opportunity of hearing to the assessee. 6. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open Court on 07.06.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 07/06/2022 Varanasi/Allahabad Sh