Aditya Swaroop Havellia , Lucknow V. Addl. Commissioner of Income Tax., Lucknow

ITA 175/LKW/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70521 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.175/LKW/2013 ASSESSMENT YEAR:2007-08 ADITYA SWAROOP HAVELLIA LUCKNOW V. ACIT RANGE 1, LUCKNOW PAN:AAEPH2659C (APPELLANT) (RESPONDENT) A PP ELLANT B Y :SHRI. YO G ESH A G RAWAL, ADVOCATE RESPONDENT BY: SMT. RANU BISWAS, D.R. DATE OF HEARING: 30.05.2013 DATE OF PRONOU NCEMENT: 07.08.2013 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOU S GROUNDS WHICH ARE AS UNDER:- LEARNED COMMISSIONER OF INCOME TAX APPEAL-1, LUCKNOW ERRED ON THE FACTS OF LAW IN CONFORMING THE FOLLOWING DISALLOWANCES AND ADDITIONS MADE BY THE ADDL. C. I.T., RANGE-1, LUCKNOW IN THE ASSESSMENT ORDER U/S 143(3) OF L. T. ACT, 1961 DATED 29/12/2009 AMOUNTING TO RS.1282647/- TO TH E RETURN INCOME OF RS.291540/- UNDER THE FOLLOWING HEADS: ALLEGED EXPENSES DISALLOWED RS. 135369/- :-2-: ALLEGED CLOSING STOCK DISALLOWED RS. 919778/- ALLEGED INCOME FROM OT HER SOURCES RS. 227500/- TOTAL RS. 1282647/- 1. LEARNED COMMISSIONER OF INCOME TAX APPEAL - 1, LUCKNOW ERRED ON FACTS OF LAW IN CONFORMING THE DISALLOWANCE OF VARIOUS EXPE NSES AMOUNTING TO RS.135369. 2. LEARNED COMMISSIONER OF IN COME TAX APPEAL-1 LUCKNOW ERRED ON FACTS OF LAW IN CONFORMING TH E DISALLOWANCE OF CLOSING STOCK AMOUNTING TO RS.919778. 3. LEARNED COMMISSIONER OF IN COME TAX APPEAL-1 ERRED ON FACTS OF LAW IN CONFORMING THE A DDITION OF INCOME FROM OTHER SOURCES AMOUNTIN G TO RS.227500. WHEREAS THE ASSESSMENT COMPLETED IS HIGHLY EXCESSIVE AND AGAINST THE NATURAL JUSTICE AND FAIR PLAY. 2. DURING THE COURSE OF HEARING, TH E LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT INITIALLY HE HAS NOT RECEIVED ANY NOTICE OF HEARING FROM THE LD. CIT(A). THEREAFTER HE RECEIVED A NOTICE FOR HEARING ON 11.1.2012 BUT MOVED AN APPLICATION FOR ADJOURNMENT AND ACCORDINGLY HEARING WAS ADJOURNED. THEREAFTER NO NOTICE WAS RECEIVED BY THE ASSESSEE AND THE LD. CIT(A) HAS DECIDED THE APPE AL EX-PARTE AGAINST THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT BEEN AFFORDED PROPER OPPORTUN ITY OF BEING HEARD, HENCE THE MATTER MAY BE RESTORED BACK TO TH E FILE OF THE LD. CIT(A) FOR RE-ADJUDICATION OF THE ISSUES INVOLVED AFTER AFFORDING PROPER OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. :-3-: 3. THE LD. D.R., ON THE OTHER HAND, HAS SUPPORTED THE ORDER OF THE LD. CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMIS SIONS AND CAREFULLY PERUSED THE ORDER OF THE LD. CIT(A) AND WE FIND THAT THE LD. CIT(A) HAS RECORDED SERVICE OF ONLY ONE NOTICE OF HEARING THOUGH HE HAS MENTI ONED ABOUT ISSUANCE OF NOTICE ON VARIOUS DATES. FOR THE LAST DATE OF HEARING WHEN THE MATTER WAS FIXED ON 31.1.2012, THE LD. CIT(A) HIMS ELF HAS MENTIONED IN HIS ORDER THAT THE NOTICE ISSUED FOR THE DATE OF HEARING ON 31.1.2012 WAS RECEIVED UN- SERVED, BUT THE LD. CIT(A) INSTEAD OF ISSUING FRESH NOTICE TO THE ASSESSEE HAS DECIDED THE MATTER EX-P ARTE AND CONFIRMED THE A DDITIONS. SINCE THE LD. CIT(A) HAS DISPOSED OF THE APPEAL WI THOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNIT Y BE AFFORDED TO THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) A ND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO EXTEND ALL SORT OF CO-OPERATION AND PUT HIS APPEARANCE BEFORE THE LD. CI T(A) AS AND WHEN DESIRED. 5. IN THE RESULT, APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN TH E OPEN COURT ON 7.8.2013. SD/- SD/- [PRAMOD KUMAR] [S UNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:7.8.2013 JJ:0507 :-4-: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR