M/s. Maa Chandika Automobile, Chhaygaon V. Income Tax Officer, Ward-1(4), Guwahati

ITA 163/GTY/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2674 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 19-10-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: KISHORE KR. JAIN
• Keywords: Additional evidence; Reasonable cause; Set aside
• Section: 68; 142(1)

Judgement Text

1 ITA NO. 163/GAU/2020 M/S. MAA CHANDIKA AUTOMOBILE, AY 2016-17 IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 163/GAU/2020 ASSESSMENT YEAR:2016-17 M/S. MAA CHANDIKA AUTOMOBILE (PAN: AATFM5743R) VS. INCOME-TAX OFFICER, WARD - 1(4), GUWAHATI APPELLANT RESPONDENT DATE OF HEARING 07.10.2021 DATE OF PRONOUNCEMENT 28.10.2021 FOR THE APPELLANT SHRI KISHORE KR. JAIN, ADVOCATE FOR THE RESPONDENT SHRI ARUP CHATTERJEE, ADDL. CIT ORDER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), GUWAHATI-1, GUWAHATI DATED 24-01-2020 FOR ASSESSMENT YEAR 2016 -17. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE A O HAD PASSED THE ASSESSMENT ORDER WITHOUT HEARING THE ASSESSEE AND WITHOUT LOOKING IN TO THE DOCUMENTS/DETAILS WHICH PROMPTED THE AO TO HOLD AS UNDER: 11. IN THE FACTS & CIRCUMSTANCES OF THE CASE I FI ND IN ABSENCE OF REQUISITE DETAILS & PROPER EXPLANATION. CASH IN HAND OF RS.23,22,115/- FOR THE PERIOD ENDED ON 31.03.2016 (LEAVING OPENING CASH BALANCE AS ON 01.04.2015 OF RS.17,41 5/-) REMAINS UNEXPLAINED AND THEREFORE ADDED RS.23,22,115/- UNDER SECTION 68 OF THE ACT TO THE TOTAL INCOME OF THE ASSESSEE. FURTHER TAX PAYABLE ON ABOVE INCOME OF RS.23,22,115/- IS CO MPUTED U/S. 115BBE OF THE ACT FOR THE ASSESSMENT YEAR 2016-17. 3. AGGRIEVED BY THE AFORESAID ORDER, THE ASSESSEE P REFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO DID NOT ALLOW THE ASSESSEE TO FILE ADDI TIONAL EVIDENCE WHICH COULD NOT BE PRODUCED BEFORE THE AO AND HE CONFIRMED THE ORDER O F THE AO AND PASSED CERTAIN DIRECTIONS WHICH ACTION OF THE LD. CIT(A) HAS BEEN CHALLENGED BY THE ASSESSEE BEFORE US. 2 ITA NO. 163/GAU/2020 M/S. MAA CHANDIKA AUTOMOBILE, AY 2016-17 4. HAVING HEARD BOTH THE PARTIES I FIND THAT THE AO HAS TAKEN ADVERSE VIEW AGAINST THE ASSESSEE FOR ABSENCE OF REQUISITE DETAILS AND PROPE R EXPLANATIONS. DURING THE FIRST APPELLATE PROCEEDING, THOUGH THE ASSESSEE WANTED TO FILE ADDI TIONAL EVIDENCE BEFORE THE LD. CIT(A) ITS REQUEST HAS BEEN TURNED DOWN, THEREFORE, THE A SSESSEE IS BEFORE THIS TRIBUNAL. THE IMPUGNED ACTION OF THE LD. CIT(A) CANNOT BE COUNTEN ANCED. IT IS SETTLED THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSEE SHOULD BE GIVEN PROPER OPPORTUNITY TO PRODUCE THE DOCUMENTS AND EXPLANATION IN RESPECT OF THE QUERIES RAISED BY THE AO. HOWEVER IF THE ASSESSEE HAD REASONABLE CAUSE FOR NOT PRODUCING THE SAME BEFORE THE AO, THE LD. CIT(A) OUGHT TO HAVE PROCEEDED AS PER RULE 46A OF THE INCO ME TAX RULES, 1962 AND ADJUDICATED AS TO THE ADMISSIBILITY OF THE ADDITIONAL EVIDENCE AND PROCEEDED FURTHER BY CALLING FOR REMAND REPORT FROM THE AO IF THE ASSESSEE HAS MADE OUT A C ASE FOR REASONABLE CAUSE IN NOT PRODUCING THE RELEVANT MATERIAL BEFORE THE AO AND T HEREAFTER, DECIDED THE ISSUE BEFORE HIM IN ACCORDANCE TO LAW. BE THAT AS IT MAY BE, IN THIS CASE THE AO HAS MADE THE ADDITION ATTRIBUTING FAILURE ON THE PART OF ASSESSEE IN PROD UCING THE SAME [DOCUMENTS/MATERIAL/EXPLANATION]. ON APPEAL THE LD. CIT(A) DID NOT ALLOW THE MATERIAL/EXPLANATION CALLED FOR BY THE AO ON A HYPE R TECHNICAL GROUND I.E, FOR NON-FILING OF ANY PETITION FOR ADMISSION OF ADDITIONAL/RELEVANT EVIDENCE. IT HAS BEEN BROUGHT TO MY NOTICE THAT DURING THE APPELLATE PROCEEDINGS, THE LD. CIT( A) NEVER RAISED ANY QUERIES ABOUT REASON FOR NOT FILING THE MATERIAL/DOCUMENTS/EXPLANATION C ALLED FOR BY THE AO. ACCORDING TO LD. A.R., THE REASON FOR NOT FILING THE MATERIAL DURING THE ASSESSMENT PROCEEDINGS WERE DUE TO MIS-PLACEMENT OF THE NOTICE U/S 142(1) OF THE ACT, WHICH LED TO THE NON-FILING OF DOCUMENTS/EXPLANATION DURING ASSESSMENT PROCEEDINGS . AFTER TAKING NOTE OF THE BACKDROP OF THE CASE, I AM OF THE VIEW THAT ASSESSEE WAS PREVEN TED BY REASONABLY CAUSE FOR NOT PRESENTING THE DOCUMENTS/MATERIAL/EXPLANATION BEFOR E THE AO. IN SUCH A SCENARIO THE WHOLE MATTER NEED TO BE RESTORED BACK TO AO FOR FRESH ASS ESSMENT. FOR DOING THAT, , I RELY ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F TIN BOX COMPANY VS. CIT REPORTED IN (2001) 249 ITR 216 (SC) WHEREIN THE HONBLE SUPR EME COURT HAS OBSERVED THAT THE ASSESSEE SHOULD BE GIVEN PROPER OPPORTUNITY DURING THE ASSESSMENT PROCEEDINGS AND FAILURE TO DO SO THEN THE MATTER SHOULD BE REMITTED BACK TO THE A.O. THE ORDER OF THE HONBLE SUPREME COURT IN TIN BOX CO. (SUPRA) ARE AS UNDER: 3 ITA NO. 163/GAU/2020 M/S. MAA CHANDIKA AUTOMOBILE, AY 2016-17 1. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN TH ESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : 'WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEE'S SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING H EARD.' 2. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEF ORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SELLING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND T HE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MA TTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OP PORTUNITY OF BEING HEARD. 3. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : '1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FI NDING ARRIVED AT BY IT THAT THE INCOME-TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF HEARI NG TO THE ASSESSEE ?' 4. IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSES-SEE. 5. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLEN GE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CONSI DERATION, AS AFORE-STATED. NO ORDER AS TO COSTS. 5. IN THE LIGHT OF THE AFORESAID DECISION OF THE HO NBLE SUPREME COURT, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND ALL THE IS SUES ARE RESTORED BACK TO THE FILE OF AO AND THE AO IS DIRECTED TO DE NOVO FRAME THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION. THE LD. AR OF THE ASSESSEE HAS UNDERTAKEN TO BE PRESENT BEFORE THE AO WITH ALL DOCUMENTS AND FILE THE EXPLANATION AS CALLED FOR BY HIM AND FILE WRITTEN SUBMISSION. AND THE AO TO DE- NOVO ASSESS THE INCOME OF THE ASSESSEE IN ACCORDANC E TO LAW. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2021. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 28 TH OCTOBER, 2021 JD(SR.P.S.) 4 ITA NO. 163/GAU/2020 M/S. MAA CHANDIKA AUTOMOBILE, AY 2016-17 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. MAA CHANDIKA AUTOMOBILE, VILL & P.O. CHHAYGAON NEAR ANUKUL MANDIR, P.S. CHHAYGAON, DIST. KAMRUP, A SSAM 781124 2 RESPONDENT INCOME-TAX OFFICER, WARD-1(4), GUWAH ATI 3. 4. 5. CIT(A), GUWAHATI-1, GUWAHATI CIT- GUWAHATI DR, ITAT, GUWAHATI / TRUE COPY, BY ORDER, SENIOR PVT. SECY.