SHRI KHANCHAND D. DODEJA, Akola V. I.T.O. Ward -1, Akola

ITA 169/NAG/2015

• Counselvise Citation: [2014] 117 COUNSELVISE.COM (IT) 8881 (ITAT-NAGPUR)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 23-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 20-05-2015
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Assessee Lawyers: S C THAKKAR; C J THAKKAR
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 133A; 147; 131; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.169/NAG./2015 (ASSESSMENT YEAR : 200809 ) KHANCHAND D. DODEJA, C/O GOVINDMAL PARPIYAMAL, APYMC YARD, AKOLA. PAN ABHPD7198L . APPELLANT V/S ITO, WARD-I, AYAKAR BHAWAN, MURTIZAPUR ROAD, AKOLA. . RESPONDENT ASSESSEE BY : S/SHRI C. J. THAKKAR & S.C. THAKKAR. REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 30.03.2017 DATE OF ORDER 31.03 .2017 O R D E R PER RAM LAL NEGI, J.M. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE IMPUGNED ORDER DATED 27.02.2015, PASSED BY THE LEARNED COMMI SSIONER (APPEALS)I, NAGPUR, HEREINAFTER TO BE REFERRED AS CIT(A), WHEREBY THE LEARNED CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORD ER PASSED UNDER SECTION 144 READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT ) BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 200506. 2. BRIEF FACTS OF THE CASE ARE THAT IN THE CASE OF M/S. GOVINDMA PARPIYAMAL, A SURVEY ACTION UNDER SECTION 133A OF THE ACT WAS CON DUCTED BY THE DY. DIRECTOR OF INCOME TAX(INV), AKOLA ON 7.01.2011. DURING THE COU RSE OF SURVEY, IT WAS FOUND THAT THE ASSESSEE HAD NOT FILED HIS RETURN OF INCOME SIN CE A.Y. 2005-06. FURTHER IT WAS NOTICED THAT DURING THE FINANCIAL YEAR 2004-05 AN A MOUNT OF RS.50,92,282/-HAS BEEN CREDITED IN THE CURRENT ACCOUNT OF THE ASSESSE E FIRM MAINTAINED IN COMMERCIAL COOPERATIVE BANK AKOT ROAD BRANCH. 3. ON THE BASIS OF THE SAID INFORMATION NOTICE UNDE R SECTION 148 OF THE ACT WAS SERVED UPON THE ASSESSEE AND THE CASE WAS SELECTED FOR SCRUTINY. THEREAFTER NOTICES UNDER SECTION 142(1) AND 143(2) WERE ISSUED, HOWEVE R, ASSESSEE NEITHER ATTENDED NOR FILED ANY WRITTEN EXPLANATION. SUMMONS UNDER SE CTION 131 OF THE ACT AND THE CASE WAS FIXED FOR HEARING BUT AGAIN THE ASSESSEE D ID NOT ATTEND. ULTIMATELY ON THE BASIS OF ENTRIES THE THE ASSESSMENT ORDER WAS PASSE D UNDER SECTION 144 OF THE ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS . 50,92,282/- MAKING ADDITION OF THE SAID AMOUNT UNDER SECTION 68 OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDER ASSESSEE FILED FIRST APPEAL BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) AFTER HEARING TH E COUNSEL FOR THE ASSESSEE CONFIRMED THE IMPUGNED ASSESSMENT ORDER HOLDING AS UNDER:- IT IS QUITE MANIFEST FROM THE ABOVE THAT AMPLE OPP ORTUNITIES WERE CONFERRED ON THE APPEAL AT IN THE COURSE OF APPELLATE PROCEED INGS TO EXPLAIN THE CASH CREDITS IN HIS BANK ACCOUNT. HOWEVER, THE APPELLANT CHOSE NOT TO PURSUE THE MATTER. IN THIS REGARD, THE ASSESSEE WAS ALSO INTIM ATED THAT THE OPPORTUNITIES CONFERRED ON28.01.2015 AND 19.02.2015 WERE GRANTED AS LAST OPPORTUNITIES BUT ONCE AGAIN THE ASSESSEE HAD NOT TAKEN ANY COGNI ZANCE OF THE SAME. THEREFORE, THE APPEAL FILED BY THE APPELLANTS DISM ISSED FOR WANT OF PROSECUTION. 5. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AG AINST THE ORDER PASSED BY THE LEARNED CIT(A) ON THE FOLLOWING GROUNDS OF APPEAL: 6. LEARNED C.I.T.(A) HAS ERRED IN NOT GIVING PROPER OPPORTUNITY TO APPELLANT TO PRESENT ITS CASE; THAT THE APPELLANT DID NOT RECEIV E NOTICE DT. 21.03.2014, 04.06.2014 TO 19.01.2015 MENTIONED IN THE ORDER; TH AT THE LEARNED C. I. T. (A) HAS ERRED IN NOT PROPERLY CONSIDERING THE ASSESSEE S SUBMISSIONS FILED BEFORE HIM WHILE PASSING THE IMPUGNED ORDER; THAT THE ORDER DATED 27.02.2015 WAS RECEIVED BY THE ASSESSEE ON 27.03.2015 AND THAT THE LEARNED C. I. T. (A) HAS ERRED IN NOT CONSIDERING THE SUBMISSION OF THE ASSESSEE IN RESPE CT OF APPEAL PERTAINING TO A.Y. 2005-06 WHILE PASSING THE ORDER FOR THE A.Y. 2006- 07 TO 2009-10 ON 25.03.2015. 7. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE LEARNER CIT(A) HAS WRONGLY CONFIRMED THE EX PARTE A SSESSMENT ORDER PASSED UNDER SECTION 144 OF THE ACT, WITHOUT GIVING PROPER OPPOR TUNITY TO THE APPELLANT AS THE APPELLANT DID NOT RECEIVE NOTICE DATED 21.3.2014,4. 6.2014 TO 19.1,2015 MENTIONED AT PAGE 4 OF THE ORDER. THE LEARNED COUNSEL FURTHER SUBMITTED THAT A CONSOLIDATED WRITTEN SUBMISSION WAS FILED BEFORE THE LEARNED CIT (A) DURING THE HEARING OF APPEALS PERTAINING TO THE ASSESSMENT YEAR 2006-07 T O 2009-10 UNDER THE IMPRESSION THAT THE APPEAL PERTAINING TO THE ASSESS MENT YEAR IS YET TO BE PASSED. HOWEVER, WHEN THE ASSESSEE RECEIVE THE ORDER APPELL ATE ORDER PERTAINING TO THE ASSESSMENT YEAR 2005-06 THE ASSESSEE CAME TO KNOW T HAT THE SAID ORDER HAS ALREADY BEEN PASSED. THE LEARNED COUNSEL FURTHER SU BMITTED THAT SINCE REPLY TO THE QUIERY RAISED BY THE AUTHORITIES BELOW HAS BEEN INC ORPORATED IN THE CONSOLIDATED REPLY, THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY TO SUBMIT THE SAME IN THE PRESENT CASE. 8. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE SUBMITTED THAT SINCE THE ASSESSEE HAS FAILED TO EXPLAIN THE CREDIT ENTRIES IN QUESTION DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE LEARNED CIT(A ) THE LEARNED CIT(A) HAS RIGHTLY UPHELD THE ASSESSMENT ORDER PASSED BY THE AO. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE MATERIAL ON RECORD IN THE LIGHT OF THE RESPECTIVE SUBMISSIONS OF THE P ARTIES. THERE APPEARS SOME SUBSTANCE IN THE CONTENTION OF THE ASSESSEE THAT TH E IMPUGNED ORDER WAS RECEIVED ON 27.3.20015 AND THE ASSESSEE SUBMITTED A CONSOLID ATED WRITTEN SUBMISSION IN RESPECT OF ALL THE APPEALS INCLUDING APPEALPERTAINI NG TO THE ASSESSMENT YEAR UNDER CONSIDERATION, UNDER A BONA FIDE BELIEF THAT APPEAL PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATION IS YET TO BE DECIDED BY TH E LD. CIT(A). WE NOTICE THAT IN THE COMMON ORDER PASSED BY THE LEARNED CIT(A) FOR T HE ASSESSMENT YEARS 2006-07 TO 2009-10, THERE IS A REFERENCE OF CONSOLIDATED WR ITTEN SUBMISSIONS MADE BY THE ASSESSEE IN RESPECT OF THE APPEALS PERTAIING TO THE ASSESSMENT YEARS 2005-06 TO 2009-10. IT SHOWS THAT THE LEARNED CIT(A) HAS PASSE D THE SAID ORDER TAKING INTO CONSIDERATION THE WRITTEN SUBMISSION MADE BY THE AS SESSEE, WHEREAS THE LEARNED CIT(A) HAD NO OCCASION TO CONSIDER THE SAME WHILE P ASSING ORDER UNDER CHALLENGE AS THE SAME WAS SUBMITTED AFTER PASSING OF THE IMPU GNED ORDER. 10. WE ALSO NOTICE THAT THE LEARNED CIT(A) HAS DISM ISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION ON THE GROUND T HAT THE ASSESSEE DID NOT APPEAR TO EXPLAIN THE QUESTIONED CASH CREDIT DESPITE SUFFI CIENT OPPORTUNITIES AFFORDED FOR THIS PURPOSE. THE LEARNED CIT(A) HAS ALSO MENTIONED THE DETAILS OF OPPORTUNITY GIVEN TO THE ASSESSEE IN ORDER TO BRING THE CONDUCT OF THE ASSESSEE ON RECORD, HOWEVER, IT IS NOT CLEAR FROM THE SAME AS TO WHETHE R THE ASSESSEE DID NOT APPEAR DESPITE SERVICE OF NOTICES OR THE NOTICES WERE RECE IVED BACK UNSERVED. 11. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSID ERED VIEW THAT THE ASSESSEE SHOULD GET AN OPPORTUNITY TO PRESENT ITS CASE BEFOR E THE 1 ST APPELLATE AUTHORITIY. HENCE, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE SET ASIDE THE IMPUGNED ORDER AND SEND THIS APPEAL BACK TO THE LEARNED CIT(A) FOR DEC IDING THE APPEAL ON MERIT AFTER TAKING INTO CONSIDERATION THE WRITTEN SUBMISSIONS M ADE BY THE ASSESSEE AT THE TIME OF HEARING OF THE CASE PERTAINING TO THE ASSESSMENT YEAR 2006-07 TO 2009-10. NEEDLESS TO SAY THAT THE LEARNED CIT(A) SHALL AFFOR D A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASS ESSEE NOT TO SEEK ADJOURNMENTS ON FRIVOLOUS GROUNDS DURING THE PROCEEDINGS BEFORE THE LEARNED CIT(A). IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2017 SD/- SHAMIM YAHYA ACCOUNTANT MEMBER SD/- RAM LAL NEGI JUDICIAL MEMBER NAGPUR, DATED: 31.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR