Smt. Mohini Devi, Kanpur V. Income Tax Officer-2(2), Kanpur

ITA 174/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4366 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.174/LKW/2016 ASSESSMENT YEAR 2007-08 ITO-2(2), KANPUR 208001 VS SMT. MOHINI DEVI, 117/H-1/293, PANDU NAGAR, KANPUR - 208005 PAN AEZPD 6227 R (RESPONDENT) (APPELLANT) SHRI RAKESH GARG, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 1 5 /07/2016 DATE OF HEARING 20 /07/2016 DATE OF PRONOUNCEMENT O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-1, KANPUR, INTER ALIA ON FOLLOWING GROUNDS:- '1. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LA W IN DISMISSING THE APPEAL EXPARTE WITHOUT GIVING OPPORTUNITY , WHICH O RDER IS BAD IN LAW AND BE QUASHED. 2. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THERE WAS NO COMPLIANCE TO THE NOTICE ISSUED FOR HE ARING WHEREAS, IN FACT, NO SUCH NOTICE WAS SERVED ON THE ASSESSEE APPELLANT, THE ORDER PASSED IS BAD IN LAW AND BE QUASHED. 3. BECAUSE ON PERUSAL OF RECORDS, IT WOULD BE FOUND THAT THE NOTICE DATED 12.01.2016 HAS BEEN RETURNED BACK UNSERVED FO R THE REASON THAT THE SAME CARRIES INCORRECT ADDRESS AND AS SUCH , THE ASSESSEE APPELLANT CANNOT BE HELD RESPONSIBLE FOR NON-COMPLI ANCE OF THE NOTICE, IF ANY. 4. BECAUSE THE ORDER PASSED BY THE CIT(A) IS SELF C ONTRADICTORY, PASSED IN UTTER HASTE, WITHOUT APPLICATION OF MIND AND VERIFYING THE 2 FACTS, IN AS MUCH AS, IT HAS BEEN ALLEGED BY THE CI T(A) THAT THE NOTICE HAS BEEN SERVED ON THE ASSESSEE APPELLANT WH EREAS, IN FACT, THE NOTICE IS ON THE FILE AS UNSERVED, THE ORDER PA SSED IS BAD IN LAW AND BE QUASHED. 5. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN ARBITRARILY UPHOLDING THE ADDITIONS AND THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WITHOUT GIVING ANY COGENT FINDING OR DECIDING THE ISSUE ON MERITS. 6. BECAUSE WITHOUT PREJUDICE TO THE ABOVE, THE CIT( A) HAS ERRED ON FACTS AND IN LAW IN ARBITRARILY UPHOLDING THE ADDIT ION OF RS.2,45,256/- TO THE INCOME OF THE APPELLANT BY APP LYING A GROSS PROFIT RATE OF 9.24% AS AGAINST 6.27% DISCLOSED BY THE APPELLANT. 7. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT TAKING INTO CONSIDERATION THE NATURE OF BUSINESS, THE PAST RECO RDS AS WELL AS THE PAST HISTORY OF THE APPELLANT AND HAS ARBITRARI LY HELD IN ONE LINER THAT THE ADDITION MADE BY THE ASSESSING OFFIC ER IS UPHELD, THE FINDING IS CONTRARY TO FACTS, BAD IN LAW, THE ADDIT ION MADE BE DELETED. 8. BECAUSE THE CIT(A) THE CIT(A) HAS WRONGLY U PHELD THE REJECTION OF BOOKS OF ACCOUNT, WHEREAS THERE HAS BEEN NO CHANGE IN THE METHOD OF ACCOUNTING REGULARLY FOLLOWED BY THE ASSE SSEE, WHICH FINDING IS CONTRARY TO FACTS BAD IN LAW AND THE ADD ITION MADE ON THE BASIS OF THE SAME BE DELETED. 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR T HE ASSESSEE HAS INVITED MY ATTENTION TO THE FACT THAT CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT BUT DISMISSED THE APPEAL IN LIMINE, WHEREAS THE CIT(A) WAS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF THE ASSESSEE DID NOT AP PEAR. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), I FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE AND HAS RECORDED THAT ON VARIOUS DATES ASSESSEE APPEARED AND SOUGHT ADJOU RNMENT. THOUGH CIT(A) HAS WRITTEN FEW LINES WITH RESPECT TO THE ISSUE ON MERIT BUT ON ITS PERUSAL IT DOES NOT APPEAR TO ME THAT HE APPLIED HIS MIND TO THE FA CTS ON MERIT. I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION TO 3 READJUDICATE THE APPEAL ON MERIT AFTER AFFORDING OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- (S.K. YAD AV ) JUDICIAL MEMBER DATED: 20/07/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR