Smt. Poonam Tiwari, Kanpur V. Astt. Commissioner of Income Tax-II, Kanpur

ITA 168/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1482 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Bogus purchase; Difference of opinion; Change of opinion
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT ITA NO. 168/LKW/2018 ASSESSMENT YEAR: 2009 - 10 SMT. POONAM TIWARI E - 185, ADARSH NAGAR BARRA - 1, NEAR SANKATMOCHAN MANDIR, KANPUR V. ACIT - II KAN PUR T AN /PAN : ACCPT8164E (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH GARG, ADVOCATE RESPONDENT BY: SMT ALKA SINGH, D.R. DATE OF HEARING: 14 0 3 201 9 DATE OF PRONOUNCEMENT: 15 0 3 201 9 O R D E R THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - I, KANPUR DATED 20/11/2017 FOR ASSESSMENT YEAR 20 09 - 10 , TAKING THE FOLLOWING GROUNDS: 1 . BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN SUMMARILY DISMISSING THE APPEAL EX - PARTE WITHOUT GIVING ANY OPPORTUNITY, OF BEING HEARD. 2 . BECAUSE THE C IT(A) HAS FAILED TO APPRECIATE THAT NO NOTICE DATED 20.06.2017 AND 06.07.2017 SEEKING COMPLIANCE FOR 18.08.2017 AND 13.11.2017 WAS SERVED ON THE ASSESSEE, THE ORDER PASSED EX - PARTE IS BAD IN LAW AND BE QUASHED. 3 . BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE T HE FACTS AND CIRCUMSTANCES OF THE CASE AND SHOULD HAVE PASSED A SPEAKING ORDER BASED ON STATEMENT OF FACTS AND GROUNDS OF APPEAL AS MENTIONED IN THE MEMORANDUM OF APPEAL. 4 . BECAUSE ON A PROPER CONSIDERATION OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER P ASSED BY THE CIT(A) DISMISSING THE APPEAL IN DEFAULT IS BAD IN AW, UNJUSTIFIED AND BE QUASHED. ITA NO.168/LKW/2018 PAGE 2 OF 4 5 . BECAUSE WITHOUT PREJUDICE TO THE ABOVE THE CIT(A) HAS FAILED TO GIVE ANY FINDING WITH RESPECT TO THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE NOTICE ISSUED UN DER SECTION 148 DATED 26.03.2015 IS WITHOUT JURISDICTION, BAD IN LAW AND BE QUASHED. 2. BECAUSE THE REASONS RECORDED ON 25.03.2015, THE NOTICE ISSUED ON 26.03.2015 ARE CONTRARY TO THE PROVISIONS OF LAW, THE PROCEEDINGS FOR RE - ASSESSMENT ARE BAD IN LAW AND BE QUASHED. 3. BECAUSE THE OBJECTIONS FILED BY THE ASSESSEE TO NOTICE ISSUED UNDER SECTION 148 VIDE LETTER, DATED 27.07.2015 HAVING NOT BEEN DISPOSED OF WITHIN THE STIPUL ATED PERIOD OF TIME, THE ENTIRE RE - ASSESSMENT PROCEEDINGS I NITIATED ARE WITHOUT JURISD ICTION, BAD IN LAW, THE RE - ASSESSMENT FRAMED BE QUASHED. 4. BECAUSE THE R EASONS RECO R D E D ARE BASED ON REAPPRAISAL OF THE MATERIAL ALREADY ON RECORD, IS A CASE OF CHANGE OF OPINION, AND THERE BEING NO SATISFACTION THAT THERE HAS BEEN FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TR U LY AND FULLY THE MATERIAL FACTS RELEVANT FOR THE ASSESSMENT, THE ENTIRE REASSESSMENT FRAMED IS WITHOUT JURISDICTION BAD IN LAW AND BE QUASHED. 5. BECAUSE NO OPPORTU NIT Y AS MANDATED U/S.127 HAS BEEN PROVIDED TO THE ASS ESSEE TO TR ANSFER THE FILE FROM 'ACLT - 2 TO ACIT - 3 THE ENTIRE REASSESSMENT FRAMED IS WITHOUT JURISDICTION AND BE QUASHED. 6. BECAUSE THE AO HAS ERRED ON FACTS AND IN LA WN IN MAKING AN ADDITION OF RS.3,87,346 / - ON ACCOUNT OF UNACCOUNTED SALES AND BOGUS PURCHASES IN THE BUSINESS STYLED AS M/S. AADISHAKTI EXPORT (OVERSEAS), WHICH ADDITION IS CONTRARY, TO FACTS, BAD IN LAW BE DELETED. 7. BECAUSE ON A PROPER CONSIDERATION OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITIONS MADE BY THE AO ARE CONTRARY TO FACTS, BAD IN LAW BE DELETED. ITA NO.168/LKW/2018 PAGE 3 OF 4 2 . BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL OBSERVING , INTER ALIA, AS UNDER: - IN REPLY TO THE NOTICES ISSUED DATED 08.05.20 17, 14.06.2017, 20.07.2017 & 06 .11.2017 FOR COMPLIANCE O N 23.05.2017, 28.06.2017 , 18.08.2017 & 13.11.2017 RESPECTIVELY. NO SUBMI SSION OR ANY PAPER BOOKS HAS BEEN FILED IN SUPPORT OF ANY OF THE GROUNDS OF APPEAL IN THIS OFFICE. IT APPEARS THAT ASSESSEE IS NOT INTERESTED IN PURSUING HIS OWN APPEAL. THE CASE IS BEING DECIDED IN ABSENCE O F ANY SUBMISSION OR ATTENDANCE BY THE ASS ESSEE OR HIS A.R. ON EACH OF THESE DAYS WHEN THE CASE WAS FIXED FOR HEARING, IT IS SEEN THAT THE ASSESSEE HAS REMAINED ABSENT, DESPITE THE FACT THAT NOTICE FOR THE SPECIFIC DATES OF HEARING HAVE CONSISTENTLY BEEN SE NT TO THE ADDRESS PROVIDED BY THE ASSESSEE IN MEMO OF APPEALS. IN THESE CIRCUMSTANCES, IT CAN BE SAFELY PRESUMED THAT THE A SSESSEE IS NOT SERIOUS IN PURSUING THE PRESENT APPEAL. ACCORDINGLY, I HEREBY DECIDE THIS APPEAL FILED BY THE APPELLANT ASSESSEE ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD. THERE M AY BE VARIOUS REASONS WITH THE APPELLANT TO REMAIN ABSENT AT THE TIME OF HEARING. ONE O F THE REASONS MAY ALSO BE A DESIRE OR ABSENCE OF NEED TO PROSECUTE THE APPEAL OR IN ABILITY TO ASSIST THE COMMISSIONER OF INCOME TAX (A) IN A PROPER MANNER. THE CONTENTS OF THE AO ' S ORDER HAVE BEEN PERUSED AND I HAVE NO REASONS TO INTERFERE WITH THE STAND TAKEN BY THE AO. DURING THE APPEAL PROCEEDING ALSO, THE DETAILS AND EV I DENCES IN SUPPORT OF THE CLAIMS MADE IN THE GROUNDS OF APPEAL ARE NOT FILED. THEREFORE., THE ASSESSMENT ORDER IS N O T INTERFERED WITH. IN THE RESULT, APPEAL IS DISMISSED. 3 . HEARD. I FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. ON THE DATE S FIXED FOR HEA RING, I.E., ON 23.05.2017, 28.06.2017, 18.08.2017 & 13.11.2017, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A), THEREFORE, HE DISMISSED THE APPEAL EX - PARTE QUA THE ASSESSEE. THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE WITHOUT DEALING WITH THE ISSUES ON MERIT, WHEREAS AS PER LAW, THE LD. CIT(A) OUGHT TO HAVE ITA NO.168/LKW/2018 PAGE 4 OF 4 ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. AS SUCH , ANOTHER OPPORTUNITY OF HEARING REQUIRES TO BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE FULLY BEFO RE THE LD. CIT(A). EVEN OTHERWISE, IT IS TRITE [S. VELU PALANDAR VS. DCIT 83 ITR 683 (MAD.)] AND INCUMBENT ON THE LD CIT(A) TO DECIDE AN APPEAL ON MERIT EVEN IN THE ABSENCE OF ANY REPRESENTATION BEFORE THEM. 4 . IN VIEW OF THE ABOVE , THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH ON MERIT, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). ALL PLEAS AV AILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. 5 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 / 0 3 /201 9 . SD/ - [ A. D. JAIN ] VICE PRESIDENT D ATED: 15/ 03/ 201 9 JJ: 1403 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR