J.Nageswar Rao, Cuttack V. ITO, Ward-2, Berhampur

ITA 164/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3873 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-04-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 26-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P K MISHRA
• Keywords: Business income; Principle of natural justice; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.164 /CTK/2016 ASSESSMENT YEAR : 2010 - 2011 SRI J NAGESWAR RAO, PROP. MURTY WINES, OLD BUS STAND, BERHAMPUR VS. ITO, WARD - 2, BERHAMPUR CIRCLE, BERHAMPUR PAN/GIR NO. ADOPR 3673 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.K.MISHRA, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 04 /04 / 2017 DATE OF PRONOUNCEMENT : 04 /04 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) - 1, BHUBANESWAR , DATED 6.1.2016 , FOR THE ASSESSMENT YEAR 2010 - 2011 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT, THE IMPUGNED REASSESSMENT ORDER SO PASSED U/S.147 OF THE ACT BY THE LEARNED A.O. AND SUBSEQUENTLY CONFIRMED BY THE LEARNED C.I.T(A) IS ILLEGAL, WITHOUT JURISDICTION AND WITHOUT THE AUTHORITY OF LAW, AS SUCH THE SAME NEEDS TO BE QUASHED IN THE INT EREST OF JUSTICE. 2. FOR THAT, THE LEARNED C.I.T(A) HAS COMMITTED GROSS ERROR OF LAW IN NOT SENDING THE NOTICE THROUGH THE ASSESSING OFFICER, WHEN IT WAS RETURNED BACK ON THE REMARKS THAT, BUSINESS CLOSED. IN VIEW OF THIS THE IMPUGNED ORDER PASSED BY THE L EARNED C.I.T(A) NEEDS TO BE SET - ASIDE IN THE INTEREST OF JUSTICE. 2 ITA NO.164/CTK/2016 ASSESSMENT YEAR :2010 - 2011 3. FOR THAT, THE LEARNED C.I.T(A) SHOULD HAVE ALLOWED SUFFICIENT OPPORTUNITIES FOR HEARING AND SHOULD HAVE CALLED FOR THE ASSESSMENT RECORD OF THE ASSESSEE AND HIS WIFE BEFORE CONFIRMING THE IMPUGNED ADDITION MADE BY THE LEARNED A.O. IN VIEW OF THIS THE IMPUGNED ORDER PASSED BY THE LEARNED C.I.T(A) NEEDS TO BE SET - ASIDE IN THE INTEREST OF JUSTICE. 4. FOR THAT, WHEN THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE DULY AUDITED AND DURING COURSE OF AU DIT, IT IS FOUND THAT, OUT OF TOTAL DEPOSITS ONLY RS. 1,77,21,370.00 BELONGS TO THE ASSESSEE'S TURNOVER AND OTHER DEPOSITS DO NOT BELONG TO THE ASSESSEE, THE SAME SHOULD NOT HAVE BEEN TREATED AS BUSINESS RECEIPTS OF THE ASSESSEE. 5. FOR THAT, WHEN IT IS W ELL KNOWN TO THE LEARNED A.O. THAT, THE CASH DEPOSITS TO THE TUNE OF RS.60,83,886.00 MADE IN THE BANK ACCOUNT OF THE WIFE OF THE ASSESSEE WERE ALREADY ADDED AND TAXED IN HER HAND AND SUBSEQUENTLY DELETED BY THE LEARNED C.I.T(A), THE SAME SHOULD NOT HAVE BE EN ADDED AGAIN IN THE BUSINESS TURNOVER OF THE ASSESSEE BY THE FORUMS BELOW. 6. FOR THAT, THE IMPUGNED ESTIMATION OF PROFIT @ 6% OF THE GROSS TURNOVER DETERMINED BY THE FORUMS BELOW HAS NO BASIS, EXCESSIVE AND ILLEGAL, AS SUCH THE SAME NEEDS TO BE DELETED IN THE INTEREST OF JUSTICE. 7. FOR THAT, THE IMPUGNED ORDER BEING PASSED BY THE LEARNED C.I.T(A) ON GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, THE SAME NEEDS TO BE QUASHED IN THE INTEREST OF JUSTICE. 8. FOR THAT, THE LEARNED A.O. WHILE EXAMINING THE DEPOSITS MADE IN THE BANK ACCOUNT OF THE ASSESSEE SHOULD NOT HAVE IGNORED THE WITHDRAWALS MADE BY THE ASSESSEE AND SHOULD HAVE IGNORED THE OTHER CASH DEPOSITS EXCLUDING THE TURNOVER DECLARED BY THE ASSESSEE AS THE SAME DOES NOT BELONG TO THE ASSESSEE. 3. AT THE TIME OF HEARING, LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) AS THE ASSESSEE FAILED TO PUT IN APPEARANCE ON THE DATES FIXED FOR HEARING. HE PRAYED THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE CIT(A). HE SUBMITTED THAT HE PERSONALLY UNDERTAKES TO APPEAR BEFORE THE CIT(A) AND PRODUCE ALL DETAILS AND DOCUMENTS AS AND WHEN CALLED UPON TO DO SO. 3 ITA NO.164/CTK/2016 ASSESSMENT YEAR :2010 - 2011 4. LD DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OPPOSED THE SUBMISSION OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, I FIND THAT THE CIT(A) HAS OBSE RVED IN HIS ORDER THAT THE APPEAL WAS FIXED FOR HEARING ON 5.8.2015, 19.10.2015, 5.11.2015 AND 26.11.2015 AND NONE APPEARED ON BEHALF OF THE ASSESSEE AND, THEREFORE, THE APPEAL WAS DISPOSED OF EXPARTE CONSIDERING THE MATERIALS AVAILABLE ON RECORD. HE, THE REAFTER DISMISSED THE APPEAL OF THE ASSESSEE CONFIRMING THE ORDER OF THE ASSESSING OFFICER. 6. I FIND THAT THE CIT(A) HAS MENTIONED IN THE ORDER THAT THE APPEAL WAS FIXED ON FOUR OCCASIONS WHEN THE ASSESSEE FAILED TO APPEAR BEFORE HIM AND HE PASSED THE EXP ARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE. HOWEVER, HE HAS NOT MENTIONED AS TO WHETHER NOTICE OF HEARING SENT TO THE ASSESSEE WAS SERVED ON THE ASSESSEE. THEREFORE, I AM OF THE CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, NO HARM WILL BE CAUSE D TO THE REVENUE IF ONE MORE OPPORTUNITY IS GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE CIT(A). BEFORE ME, LD A.R. HAS GIVEN AN UNDERTAKING THAT H E WILL APPEAR BEFORE THE CIT(A) ON THE DATE OF HEARING AND FULLY CO - OPERATE WITH THE CIT(A) IN DIS POSING THE APPEAL EXPEDITIOUSLY . THEREFORE, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE APPEAL TO HIS FILE FOR FRESH ADJUDICATION AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE ALL THE DETAILS AND DOCUMENTS BEFORE THE CIT(A) ON WHICH IT WISHES TO RELY UPON AS AND WHEN CALLED UPON TO DO SO. 4 ITA NO.164/CTK/2016 ASSESSMENT YEAR :2010 - 2011 7. IN THE RESULT, THE APPEAL F ILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 0 4 /04 /2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 04 /04 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI J NAGESWAR RAO, PROP. MURTY WINES, OLD BUS STAND, BERHAMPUR 2. THE RESPONDENT. ITO, WARD - 2, BERHAMPUR CIRCLE, BERHAMPUR 3. THE CIT(A) - 1, BHUBANESWAR. 4. PR.CIT , - 1, BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//