Gopinath Mohanty, Bhubaneswar V. DCIT, Circle-2(1), Bhubaneswar

ITA 184/CTK/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4320 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-03-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: DILLIP KUMAR MOHANTY
• Keywords: Unexplained expenditure; Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 184 /CTK/2017 ASSESSMENT YEAR : 201 1 - 2012 SRI GOPINATH MOHANTY, PLOT NO.550/2437, UPPER KANAN VIHAR, PHASE - 2, JAYADEV KISHAYA KENDRA, PATIA, BHUBANESWAR. VS. DCIT, CIRCLE 2(1), BHUBANESWAR PAN/GIR NO. AFMPM 4226 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI DILLIP KUMAR MOHANTY, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 06 /0 3 / 2018 DATE OF PRONOUNCEMENT : 23 /03/ 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 7.11.2016 FOR THE ASSESSMENT YEAR 2011 - 12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER DATED 12.3.15 PASSED BY THE AO AND ORDER DATED 7.11.2016 PASSED BY THE CIT(A) - 1, BHUBANESWAR ARE VOID ABINITO, AGAINST THE NATURAL JUSTICE, UNJUSTIFIED, ERRONEOUS, ARBITRARY, CONTRARY TO FACTS , BAD IN LAW, WITHOUT JURISDICTION AND/OR IN EXCESS OF JURISDICTION AND LEGALLY UNTENABLE. 2. FOR THAT IN ABSENCE OF NOTICE U/S.143(2) OF THE I.T.ACT, 1961 THE PROCEEDING INITIATED AND COMPLETED THEREAFTER U/S.144 ARE WITHOUT \ JURISDICTION, ILLEGAL AND NO T SUSTAINABLE ON FACT AND LAW, HENCE LIABLE TO BE QUASHED. 3. FOR THAT THE ASSESSMENT AS FRAMED BY THE LEARNED ASSESSING OFFICER IS NOT BASED ON FACT AND THEREFORE NOT MAINTAINABLE IN THE EYES OF LAW. 2 ITA NO. 184/CTK/2017 ASSESSMENT YEAR : 2011 - 2012 4. THAT THE LD CIT APPEALS - I, BHUBANESWAR HAS E RRED ON FACT AS WELL AS ON LAW IN DISMISSING THE APPEAL IN LIME LINE, EVEN WITHOUT CONSIDERING THE MERITS OF THE CASE OTHERWISE. 5. FOR THAT THE LD. A.O. AS WELL AS THE LD. CIT APPEALS - I HAS ERRED ON FACT AND LAW IN CONSIDERING RS. 72,878.00 AS INCOM E UNDER THE HEAD OTHER SOURCES AND ADDED BACK TO THE TOTAL INCOME WITHOUT A SPEAKING ORDER ONLY PLACING RELIANCE ON THE STATEMENT OF 26AS. 6. FOR THAT THE LD. A.O. AS WELL AS THE LD. CIT (A) - L, IS ARBITRARY & UNJUSTIFIED TO ADD A SUM OF RS. 19,37,000 / - UNDER THE HEAD CASH CREDIT U/S. 68 OF THE I.T. ACT, WITHOUT ANY SPEAKING ORDER, ONLY PLACING RELIANCE ON THE AIR 8S CIB INFORMATION AND AS SUCH THE ADDITION OF THE AFORESAID SUM ARE NOT ONLY UNJUSTIFIED BUT ALSO ILLEGAL 8S LIABLE TO BE DELETED. 7. FOR THAT THE ADDITION OF RS. 3,32,000/ - AS UNEXPLAINED EXPENDITURE U/S. 69 OF THE I.T. ACT ON THE BASIS OF THE AIR INFORMATION WITHOUT ANY INDEPENDENT ENQUIRY, ARE NOT ONLY WITHOUT AUTHORITY OF LAW BUT ALSO UNJUSTIFIED, ILLEGAL AND ARBITRARY. 8. FOR THAT THE ORDER OF ASSESSMENT AS FRAMED IS OTHERWISE BAD IN LAW AND LIABLE TO BE QUASHED. 9. FOR THAT THE ASSESSEE WAS DEPRIVED FROM THE BENEFIT OF REASONABLE OPPORTUNITY OF BEING HEARD AND DEPRIVED FROM THE BENEFIT OF NATURAL JUSTICE. 10. THAT THE APPELLANT CRAVES LEAVE TO ADD TO SUPPLEMENT MODIFY THE GROUNDS HEREIN ABOVE BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITATION BY 63 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION SUPPORTED BY AFFIDAVIT FOR CONDONING THE DELAY IN FILING THE APPEAL. AFTER GOING THROUGH THE CONDONATION PETITION, WE FIND THAT THE ASSESSEE HAD REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME. LD D.R. DID NOT HAVE ANY OBJECTION FOR CONDONING THE DELAY. WE, THEREFORE, CONDONE THE DELAY OF 63 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL AND ADMIT THE APPEAL FOR HEARING. 3 ITA NO. 184/CTK/2017 ASSESSMENT YEAR : 2011 - 2012 4. AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER U/S.144 OF THE ACT ON 12.3.2015 AS THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DUE TO PROLONGED ILLNESS OF HIS MOTHER, WHO ULTIMATELY SUCCUMBED TO DEATH. IN SUPPORT OF HIS CONTENTION THAT DEATH OF LAKSHMI MOHANTY, MOTHER OF THE ASSESSEE ON 22.1.2015 , A CERTIFICA TE DATED 18.2.2015 ISSUED BY CUTTACK MUNCIPAL CORPORATION IS PLACED ON RECORD. LD A.R. ALSO SUBMITTED THAT AFTER THE DEATH OF HIS MOTHER , THE ASSESSEE WAS NOT IN A SOUND MIND AND FOR THE SAME REASON, THE ASSESSEE ALSO COULD NOT APPEAR BEFORE THE CIT(A) AND HENCE, THE CIT(A) PASSED THE ORDER EXPARTE WITHOUT AFFORDING PROPER OPPORTUNITY TO THE ASSESSEE . HE PRAYED THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO PRESENT THE CASE OF THE ASSESSEE AS HE WAS PREVENTED BY A REASONABLE CA USE FOR NOT COMPLYING WITH THE NOTICE OF HEARING ISSUED BY THE ASSESSING OFFICER AND THE CIT(A). IT WAS SUBMITTED THAT THE ASSESSEE IS HAVING ALL EVIDENCES AND EXPLANATIONS AND THE ASSESSEE HAS A VERY GOOD CASE IN H IS FAVOUR WHICH THE ASSESSEE WILL BE ABL E TO PROVE BEFORE THE ASSESSING OFFICER BY FILING NECESSARY EVIDENCES AND DETAILS. 5 . ON THE OTHER HAND, LD D.R. VEHEMENTLY OPPOSED THE SUBMISSION OF LD A.R. OF THE ASSESSEE. 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND FORCE IN THE SUBMISSION MADE BY LD A.R.OF THE ASSESSEE. THE EVIDENCE S PRODUCED BEFORE US SHOW THAT THE ASSESSEE WAS UNDER THE MENTAL AGONY DUE THE 4 ITA NO. 184/CTK/2017 ASSESSMENT YEAR : 2011 - 2012 ILLNESS OF HIS MOTHER AND CONSEQUENT DEATH ON 22.1.2015 AND FUR THER DEPRESSION POST DEATH, WHICH FACT IS PROVED BY FILING THE DEATH CERTIFICATE BEFORE US. WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE TO THE ASSESSEE, THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO REFRAME THE ASSESSMENT AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE ALL DETAILS AND EVIDENCES BEFORE THE ASSESSING OFFICER. HENC E, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23 /03 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 23 /03/2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : 2. THE RESPONDENT. 3. THE CIT(A) - 4. PR.CIT - 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//