ANIL KUIMAR, Allahabad V. I T OFFICER, Allahabad

ITA 171/ALLD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2518 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRAVEEN GODBALE
• Keywords: Salary income; Opportunity of being heard; Set aside
• Section: 80C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD ( THROUGH VIRTUAL COURT) BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.171 /ALLD/2018 ASSESSMENT YEAR: 2011 - 1 2 SRI ANIL KUMAR 593, MUTHHIGANJ, GAZIGANJ, ALLAHABAD. V. ITO, WARD - 1(1), ALLAHABAD TAN/PAN: ADJPK7672C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRAVEEN GODBALE, ADVOCATE RESPONDENT BY: SHRI A. K. SINGH, SR. DR DATE OF HEARING: 10 . 11 . 2020 DATE OF PRONOUNCEMENT: 27 . 11 . 2020 O R D E R PER SHRI VIJAY PAL RAO , JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER DATED 17.02 .2017 PASSED BY COMMIS SIONER OF INCOME TAX (APPEALS ) , ALLAHABAD FOR THE ASSESSMENT YEAR 2011 - 12 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT IN ANY VIEW OF THE MATTER THE ASSESSMENT ORDER DATED 30/03/2014 U/S 143(3) OF THE IT ACT PASSED BY THE ASSESSING OFFICER AND HIS ACTION AS CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEAL) IS UNJUSTIFIED AND WRONG IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT I N ANY VIEW OF THE MATTER THE COMMISSIONER OF INCOME TAX (APPEAL) IS HIGHLY UNJUSTIFIED IN PASSING EX - PARTE DECISION WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT BEFORE DECIDING THE APPEAL HENCE THE ACTION OF CIT(A) IS NOT CORRECT. 3. T HAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 12,98,722/ - BY APPLYING A NET RATE OF 2% ON TURNOVER AS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEAL) IS HIGHLY UNJUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE 4. THAT IN ANY VIEW OF THE MATTER THE ASSESSING OFFICER IS WRONG IN CONSIDERING THE TRANSACTIONS IN THE BANK ACCOUNT AS TRADING TRANSACTIONS WHEN IN FACT THE ASSESSEE IS SIMPLY A BROKER/MIDDLEMAN ITA NO.171/ALLD/2018 SRI ANIL KUMAR ASSESSMENT YEAR: 2011 - 12 2 AND EARNING ONLY COMMISSION INCOME HENCE THE ADDITION OF RS. 1 2,98,722/ - AS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) IS WRONG AND HIGHLY UNJUSTIFIED. 5. THAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 26,018/ - U/S 80C OF THE INCOME TAX ACT AS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A) IS HI GHLY UNJUSTIFIED. 6. THAT IN ANY VIEW OF THE MATTER ADDITION OF RS. 10,699/ - OUT OF SAVING BANK INTEREST AS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) IS WRONG AND HIGHLY UNJUSTIFIED. 7. THAT IN ANY VIEW OF THE MATTER THE FINDING AND OBSERVA TIONS OF THE TWO LOWER AUTHORITIES IN THEIR ORDERS FOR MAKING AND CONFIRMING THE ADDITION ARE UNJUSTIFIED, INCORRECT AND CONTRARY TO THE ACTUAL FACTS OF THE CASE AND HENCE THE SAME ARE LIABLE TO BE SPONGED. 8. THAT IN ANY VIEW OF THE MATTER THE INTEREST CH ARGED UNDER DIFFERENT SECTIONS OF THE IT ACT IS HIGHLY UNJUSTIFIED AND ILLEGAL IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THAT IN ANY VIEW OF THE MATTER THE APPELLANT RESERVES HIS RIGHT TO TAKE ANY FRESH GROUND BEFORE HEARING OF THE APPEAL. IT IS THERE FORE RESPECTFULLY PRAYED THAT A SUITABLE ORDER MAY KINDLY BE PASSED AND RELIEF BE ALLOWED ACCORDINGLY. 2. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY COMMISSION AS WELL AS INTEREST. THE ASSESSEE FILED HIS RETURN OF INCOME ON 27.03.2012 DE CLARING TOTAL INCOME OF RS.2,76,250/ - . WHILE COMPLETING THE ASSESSMENT U/S 143(3), THE AO HAS MADE ADDITIONS ON ACCOUNT OF COMMISSION INCOME AS WELL AS INTEREST. THE AO HAS ALSO DISALLOWED THE CLAIM OF DEDUCTION U/S 80C FOR WANT OF PROOF OF PAYMENT. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A). HOWEVER THE APPEAL OF THE ASSESSEE WAS DISMISSED WHEN NOBODY HAS APPEARED DESPITE SEVERAL NOTICES ISSUED BY THE CIT(A). 4. BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT T HE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY IMPUGNED EX PARTE ORDER AND HAS NOT MENTIONED AS ON WHAT DATE THERE WAS NO COMPLIANCE ON BEHALF OF THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT THE IMPUGNED ORDER IS A NON - SPEAKING ORDER WHICH IS NOT SUS TAINABLE IN THE EYES OF LAW. THEREFORE THE LD. AR HAS PLEADED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY OF HEARING TO PRESENT HIS CASE BEFORE THE CIT(A). HE HAS SUBMITTED THAT THE AO HAS MADE THE ADDITION ACCOUNT OF COMMISSION INCOME BY APPLYING NET RATE OF 2% AS AGAINST 0.25% SHOWN BY THE ASSESSEE. THUS, THE RATE APPLIED BY THE AO ITA NO.171/ALLD/2018 SRI ANIL KUMAR ASSESSMENT YEAR: 2011 - 12 3 IS HIGHLY ARBITRARY AND UNJUSTIFIED AND THE ASSESSEE HAS TO EXPLAIN THE SAME BEFORE THE CIT(A). ON THE OTHER HAND, THE LD. DR HAS OBJECTED FOR GRANTING OF ONE MORE OPPO RTUNITY TO THE ASSESSEE WHEN MORE THAN SUFFICIENT OPPORTUNITY HAS BEEN GRANTED BY THE CIT(A). 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CAREFUL PERUSAL OF THE IMPUGNED ORDER OF THE CIT(A), IT IS NOTED THAT THE CIT(A) HAS STATED IN THE ORDER THAT SIX NOTICES WERE ISSUED FROM TIME TO TIME AND THERE WAS NO COMPLIANCE ON BEHALF OF THE ASSESSEE. HOWEVER THE CIT(A) HAS NOT GIVEN ANY SPECIFIC DATE OR DETAILS WHEN THE NOTICES WERE ISSUED AND THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING. FURTHER THE CIT(A) H AS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING THE FINDING ON THE MERITS OF THE APPEAL. THE IMPUGNED ORDER PASSED BY THE CIT(A) IS NON - SPEAKING AND THEREFORE THE SAME DESERVES TO BE SET ASIDE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, THE ASSESSEE IS GRANTED ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE THE CIT(A). THE MATTER IS SET ASIDE TO THE RECORD OF THE CIT(A) AFTER DECIDING THE SAME AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN COURT ON 27 /11 /2020. SD/ - [ VIJAY PAL RAO ] JUDICIAL MEMBER DATED: 27 / 11 /2020 RS ITA NO.171/ALLD/2018 SRI ANIL KUMAR ASSESSMENT YEAR: 2011 - 12 4 COPY FORWARDED TO: 1. APPELLANT SRI ANIL KUMAR 2. RESPONDENT ITO, WARD - 1(1), ALLAHABAD 3. CIT(A) - 4. CIT 5. DR - BY ORDER ASSISTANT REGISTRAR DATE INITIALS ORIGINAL DICTATION PAD IS ENCLOSED AT THE END OF FILE 1. DRAFT DICTATED ON: 27 .11.2020 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 27 .11.2020 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: 27 .11.2020 SR. PS/PS 6. ORDER PRONOUNCED ON: 27 .11.2020 SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 27 .11.2020 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: