Brajesh Kumar Dwivedi, Kolkata V. Income Tax Officer, Ward 6(1), Patna

ITA 176/PAT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9599 (ITAT-PATNA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY KUMAR
• Assessee Lawyers: K N PRASAD
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 175 /PAT. /2017 : ASSTT. YEAR : 2011 - 12 ITA NO. 176/PAT./2017 : ASSTT. YEAR : 2011 - 12 BRAJESH KUMAR DWIVEDI, SHAGAUN, 181, KALIKAPUR ROAD, NEAR ICICI BANK, KOLKATA - 700099 VS INCOME TAX OFFICER, WARD - 6(1), PATNA (APPELLANT) (RESPONDENT) PAN NO. A JBPD0707F ASSESSEE BY : SH . K. N . PRASAD , ADV. REVENUE BY : SH. ABHAY KUMAR, SR. DR. DATE OF HEARING : 13 .03 .201 8 DATE OF PRONOUNCE MENT : 14 .0 3 .201 8 ORDER PER N. K. SAINI, AM : THESE TWO APPEALS BY THE ASSESSEE ARE D IRECTED AGAINST THE SEPARATE ORDER S EACH DATED 18.09.2017 OF LD. CIT( A ) - 2 , PATNA . 2. SINCE, THE APPEAL S RELATE TO THE SAME ASSESSEE AND WERE HEARD TOGETHER , SO , THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVI TY. 3. THE REGISTRY HAS POINTED OUT THAT BOTH THESE APPEALS ARE BARRED BY LIMITATION BY 11 DAYS. THE ASSESSEE MOVED APPLICATIONS EACH DATED 27.12.2017 FOR CONDONATION OF DELAY BY STATING THAT THE ASSESSEE WAS SUFFERING FROM VIRAL FEVER FROM 05.12.2017 TO 26.12.2017 AND COULD NOT COME TO PATNA FOR CONSULTATION AND PREPARATION OF APPEAL. IN SUPPORT OF THE ABOVE CONTENTION , THE ITA NO S . 175 & 176 /PAT. /201 7 BRAJESH KUMAR DWIVEDI 2 ASSESSEE ALSO FURNISHED THE PRESCRIPTION SLIP DATED 05.12.2017 ISSUED BY NARAYANI EMERGENCY HOSPITAL, CHHAPARA. 4. DURING THE COUR SE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATIONS AND REQUESTED TO ADMIT THE APPEALS BY CONDON ING THE DELAY. THE LD. DR ALTHOUGH OPPOSED THE CONDONATION OF DELAY, BUT COULD NOT CONTROVERT THE AFORESAID CO NTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT THERE WAS A REASONABLE CAUSE FOR FILING THE APPEAL S BELATED . THEREFORE, THE DELAY OF 11 DAYS IN FILING THE APPEALS IS CONDONED AND THE APPEALS ARE ADMITTED. 6 . APPEAL IN ITA NO. 175/PAT./2017, RELATES TO THE QUANTUM ADDITIONS WHILE THE APPEAL IN ITA NO. 176/PAT./2017, RELATES TO THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND SUSTAINED BY THE LD. CIT(A). 7 . THE MAIN GRIEVANCE OF THE ASSESSEE IN BOTH THESE APPEALS RELATES TO THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. FACTS OF THE C ASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 19.01.2012 DECLARING AN INCOME OF RS.1,99,890/ - . HOWEVER, THE ASSESSMENT WAS FRAMED BY THE AO AT AN INCOME OF RS.12,60,304/ - BY MAKING THE VARIOUS ADDITIONS. THE AO ALSO LEVIED THE PENALTY OF RS.1,32,500 U/S 271 (1)(C) OF THE ACT. ITA NO S . 175 & 176 /PAT. /201 7 BRAJESH KUMAR DWIVEDI 3 9. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE FOR NON - PROSECUTION. HE SIMPLY STATED THAT THE LAST NOTICE WAS ISSUED ON 23.08.2017 FOR HEARING ON 05.09.2017 BU T THERE WAS NO COMPLIANCE. 10. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE , THEREFORE, HE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FOR MAKING REPRESENTATION. 11 . IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A). 12. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) HAD NOT ADJUDICATED THE ISSUES ON MERIT AND DISMISSED THE APPEAL S OF THE ASSESSEE IN LIMINE FOR NON - PROSECUTION. HE SIMPLY STATED THAT THE NOTICES ISSUED WERE NOT COMPLIED BY THE ASSESSEE AND LATEST ONE WAS ISSUED ON 23.08.2017 FOR HEARING ON 05.09.2017. HOWEVER, NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICE S OF HEARING WERE SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE, THEREFORE, CONS IDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE, DEEM IT APPROPRIATE TO SET ASIDE THESE CASES B ACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. ITA NO S . 175 & 176 /PAT. /201 7 BRAJESH KUMAR DWIVEDI 4 13 . IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . (ORDER P RONOUNCED IN THE COURT ON 14 /03 /2018 ) SD/ - SD/ - ( SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 /0 3 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR