Anita Maheshwari, Chittorgarh. V. ITO, Ward-2, Chittorgarh.

ITA 196/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6597 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 40A(3); 143(3); 143(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 196/JODH/2018 (ASSESSMENT YEAR-2008-09) ANITA MAHESHWARI, PROP. VIJAYSHREE TRANSPORT, NIVEDITA COLONLY, NIMBAHEARA, CHITTORGARH (RAJ.) VS THE ITO, WARD-2, CHITTORGARH (APPELLANT) (RESPONDENT) PAN: AHNPLM24441H REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE (WRITTEN SUBMISSIONS OF SH P. NYAT. CA) DATE OF HEARING 30.04.2019 DATE OF PRONOUNCEMENT 30. 04.2019 O R D E R PER N. K. SAINI, V.P. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31.01.2018 OF LD. COMMISSIONER OF INCOME TAX (APPE ALS)-1, UDAIPUR. 2. DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, WRITTEN SUBMISSIOND HAS BEEN FUR NISHED ALONG WITH 2 THE AFFIDAVIT OF THE ASSESSEE WHICH HAS BEEN CONSID ERED WHILE DECIDING THIS APPEAL. 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS IN FACTS BY HOLDING THAT REOPENING OF THE CASE U/S 148 WAS CORRECT AND LEGAL. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AS IN FACTS BY SUSTAINING THE ADDITION OF RS. 1,79,097/- ON ACCOUNT OF CASH PAYMENT EXCEEDING RS. 20000/- ON SINGLE DAY. 3. THAT THE APPELLANT RESERVE THE RIGHT TO ADD, ALTER OR IN ANY WAY ARMED THE GROUNDS OF APPEAL AT OR BEFORE THE DATE HEARING. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 30.09.2008 DECLARING AN INCOME OF RS. 4,4 9,390/- AND AGRICULTURAL INCOME OF RS. 7,075/- WHICH WAS PROCES SED U/S 143(1) OF THE INCOME TAX ACT, 1961 [IN SHORT' THE ACT']. LATER ON , ASSESSMENT WAS COMPLETED AT AN INCOME OF RS. 5,05,040/- ON 16.9.20 10 U/S 143(3) OF THE ACT. THEREAFTER, THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT. THE ASSESSEE CHA LLENGED THE JURISDICTION OF THE REOPENING, BUT THE ASSESSING OF FICER DID NOT FIND MERIT IN THE SUBMISSIONS FOR THE ASSESSEE AND MADE THE ADDITION OF RS. 17,29,097/- BY MAKING DISALLOWANCE U/S 40A(3) OF TH E ACT. BEING 3 AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE L D. CIT(A) WHO PASSED THE EX-PARTE ORDER AND SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. THE LD. CIT(A) MENTIONED IN THE IMPUGNED O RDER THAT THE LAST NOTICE FOR HEARING ON 31.1.2018 WAS ISSUED TO THE A SSESSEE ON 18.1.2018, IN RESPONSE TO WHICH, NEITHER ANYBODY ATTENDED NOR FILED ANY APPLICATION FOR ADJOURNMENT. 5. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. SR. DEPARTMENTAL REPRESENTATIVE STRONG S UPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND THE ASSESSEE IN HER WRITTEN SUBMISSIONS DT 29.4.2019 HAD STATED AS UNDER:- THE ASSESSEE HAD PREFERRED THE APPEAL BEFORE THE H ONBLE ITAT AGAINST THE EX-PARTE ORDER PASSED BY THE COMMI SSIONER OF INCOME TAX (APPEALS) UDAIPUR. THE ASSESSEE WAS N OT GIVEN ENOUGH OPPORTUNITY OF BEING HEARD. WE REQUEST YOUR GOOD SELF TO KINDLY SET ASIDE THE CASE TO THE ASSESSING OFFIC ER, CHITTORGARH. FURTHER THE ADDITION MADE ON ACCOUNT OF CASH PAYMEN TS MADE TO TRUCK DRIVERS ARE IN ACTUAL THE DETAILS OF AMOUN TS PAID TO THE TRANSPORTERS ON WHICH TDS WAS DEDUCTED AND WAS NOT THE ACTUAL CASH PAYMENTS. THE FIGURES WERE WRONGLY TAKE N BY THE ASSESSING OFFICER. WE REQUEST YOU TO KINDLY GIVE US ONE OPPORTUNITY TO FURNISH THE DETAILS. THE ASSESSEE HA D REGULARLY ATTENDED THE HEARING PREVIOUSLY BEFORE THE ASSESSIN G OFFICER AND ALSO PRODUCED THE REGULAR BOOKS OFF ACCOUNTS. W E REQUEST YOU TO KINDLY SET ASIDE THE CASE TO THE ASSESSING O FFICER. 4 WE ARE ENCLOSING HEREWITH THE AFFIDAVIT FROM THE AS SESSEE STARTING THE REASONS FOR NON APPEARANCE BEFORE THE CIT (APPEALS). UDAIPUR. IN SUPPORT OF THE ABOVE, THE ASSESSEE FURNISHED AN AFFIDAVIT STATING THEREIN AS UNDER:- AFFIDAVIT I, ANITA MAHESHWARI, WIFE OF SHYAM SUNDER MAHESHWAR I BEING ADULT, RESIDING AT KASOD GATE NIMBAHERA RAJASTHAN , DO HEREBY SOLEMNLY AFFIRM AND STATE AS FOLLOWS- 1. THAT I AM THE PROPRIETOR OF M/S VIJAY SHREE TRAN SPORT CO. 2. THAT I BEING AGGRIEVED WITH ASSESSMENT ORDER DAT ED 20.03.2014 FILED APPEAL BEFORE THE LD. CIT(A), UDAI PUR. 3. THAT THE SAID APPEAL WAS DISMISSED BY THE LD. CI T(A) BY PASSING AN EX-PARTE ORDER DUE TO NON APPEARANCE OF ANYONE ON THE DATES FIXED FOR HEARING BEFORE THE LD. CIT(A). 4. THAT THE SAID APPEAL WAS FILED BY OUR TAX CONSUL TANT & ADVOCATE SHRI HARSH KUMAR JI JAIN FROM CHITTORGARH. SHRI HARSH KUMAR JI JAIN IS AN AGED PERSON AND WAS UNABL E TO TRAVEL TO UDAIPUR SO M/S NYATI & ASSOCIATES WAS ENGAGED IN THE INSTANT MATTER TO APPEAR BEFORE THE LD. CIT(A) AND I WAS UNDER THE BONA FIDE BELIEF THAT PROPER COMPLIANCES WERE M ADE FROM THEIR END. 5. THAT AFTER RECEIPT OF THE ORDER OF THE LD. CIT(A ) ON 09.03.2018 IT CAME TO MY KNOWLEDGE THAT THEY DIDNT ATTEND THE SAID CASE ON THE FIXED DATES. 6. THAT ON VERIFICATION, IT WAS FOUND THAT SHRI PRA SHANT NYATI HAD ATTENDED THE CASE ON 21 ST JULY 2017 AND HAD FILED 5 APPLICATION FOR ADJOURNMENT. AFTER THAT HE WAS NOT KEEPING WELL DURING THE RELEVANT PERIOD AND THUS, NO COMPLIANCES COULD BE MADE BY HIM. LATER ON HIS FATHER ALSO EXPIRED. 7. THAT THE FIGURES CONSIDERED ASSESSING OFFICER IN THE ORDER NOT PERTAIN TO THE CASH PAYMENTS MADE TO THE TRANSP ORTERS BUT IN FACT ARE THE TOTAL PAYMENTS ON WHICH TDS WAS DEDUCT ED. 8. THAT I GIVE AN UNDERTAKING THAT PROPER COMPLIAN CE SHALL BE MADE IN CASE THE ABOVE MENTIONED CASE IS SENT BA CK TO THE FILE OF THE LD. CIT(A). 9. THAT THE FACTS STATED IN PARA 1 TO 7 ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND PARAGRAPH 8 IS AN UNDER TAKING GIVEN BY ME. PLACE: NIMBAHERA SD/- DATED 19 TH JULY 2018 (ANITA MAHESHWARI) VERIFICATION I HEREBY STATE THAT WATERVER ISSTATED HEREIN ABOVE IS TURE TO THE BEST OF MY KNOWLEDGE. PLACE: NIMBAHERA SD/- DATED 19 TH JULY 2018 (ANITA MAHESHWARI) 7. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. SR. DEPAR TMENTAL REPRESENTATIVE AND WRITTEN SUBMISSIONS FURNISHED BY THE ASSESSEE. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE L D. CIT(A) PASSED THE IMPUGNED ORDER EX-PARTE. HE SIMPLY STATED THAT NOTI CE FOR HEARING WAS ISSUED TO THE ASSESSEE BUT NOTHING IS BROUGHT ON RE CORD TO SUBSTANTIATE THAT THE SAID NOTICE WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM 6 PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLE S OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 30.04.2019) SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED :. 30.04.2019 .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR