SHRI PADAM NARAYAN, V. THE ITO 4(1),

ITA 199/IND/2008

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6049 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-03-2010
• Assessment Year: misc
• Appeal Filed On: 21-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: KAMLESH JAIN
• Keywords: Opportunity of being heard
• Section: 234B; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA, AM ITA NO 199/IND/08 A.Y. 2004-05 SHRI PADAMNARAYAN JAISWAL INDORE APPELLANT PAN ABAPJ3011H VS INCOME TAX OFFICER 4(1) INDORE RESPONDENT APPELLANT BY SHRI KAMLESH JAIN, ADVOCATE RESPONDENT BY SMT. APARNA KARAN, SR. DR O R D E R PER JOGINDER SINGH, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 16.1.2008 ON THE GROUND THAT THE LEARNED FIRST APPE LLATE AUTHORITY FAILED TO APPRECIATE THE FACTS AND CIRCUMSTANCES OF THE CASE IN ITS PROPER PERSPECTIVE AND ERRED IN HOLDING THAT THERE WAS NO NEED TO GIVE SPECIFIC OPPORTUNITY BEFORE FINALISING THE ASSESSMENT U/S 144 AND FURTHER ERRE D IN CONFIRMING THE ACTION OF THE AO FOR PASSING AN EX-PARTE ORDER AND CONSEQUENT CONFIRMATION OF ADDITION OF RS.19,155/- CLAIMED AS INTEREST PAYMENT ON THE BORR OWED CAPITAL FOR SHARE CAPITAL INVESTMENT AND RS.17,62,000/- TOWARDS ALLEG ED LONG TERM CAPITAL GAIN EARNED ON THE SALE OF LAND. 2 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI KAMLESH JAIN, LEARNED COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN, LE ARNED SENIOR DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE PREVAILING CIRCUMSTANCES, SUBMISSIONS AND EXPLANATIONS PUT FORTH DURING THE C OURSE OF HEARING BEFORE THE LEARNED CIT(A) WERE NOT APPRECIATED IN THE REQUIRED MANNER IN UPHOLDING THE ORDER PASSED U/S 144 OF THE ACT WHICH IS WITHOUT PR OVIDING REASONABLE OPPORTUNITY IN ITS REAL SENSE. AS FAR AS CHARGING OF INTEREST U/S 234A, 234B AND 234C IS CONCERNED, IT WAS ARGUED TO BE ARBITRARY, E XCESSIVE AND WITHOUT PROPER BASIS. THE LEARNED COUNSEL FURTHER CONTENDED THAT EVEN THE ASSESSEE IS IN A POSITION TO EXPLAIN THE TRUE FACTS EVEN TODAY IF PR OPER OPPORTUNITY IS PROVIDED. ON THE OTHER HAND, THE LEARNED SENIOR DR THOUGH DEF ENDED THE IMPUGNED ORDER BUT HAD NO OBJECTION IF THE APPEAL IS REMANDED BACK TO THE FILE OF THE LEARNED AO. 3. WE HAVE CONSIDERED THE SUBMISSIONS PUT FORTH BY THE LEARNED RESPECTIVE COUNSELS AND PERUSED THE MATERIAL AVAILABLE ON THE FILE. THE ASSESSEE HAS ALSO FILED A PAPER BOOK WHICH IS AVAILABLE ON RECORD. T HE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT NO PROPER OPPORTUNIT Y WAS PROVIDED IN REAL SENSE AND THE AO HAS NOT APPRECIATED THE FACTS ON RECORD WHICH WERE IN THE POSSESSION OF THE ASSESSEE. AND FILED WITH THE RETURN. A PLEA WAS ALSO RAISED THAT THERE IS AN ELEMENT OF GUESS WORK IN THE BEST JUDGMENT ORDER AS THE ASSESSEE IS HAVING A REASONABLE NEXUS OF THE DISPUTED AMOUNT. WITHOUT GO ING INTO MERITS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT NO PERSON SHO ULD BE CONDEMNED UNHEARD 3 AS IT IS THE CLAIM OF THE ASSESSEE THAT NECESSARY E VIDENCE WAS FURNISHED ALONG WITH THE RETURN WHICH IS EVIDENT FROM RECORD. DURI NG HEARING MR JAIN SPECIFICALLY POINTED OUT THAT THE DETAILS OF INTERE ST RECEIVED AND PAID WERE DULY ATTACHED WITH THE RETURN. IN VIEW OF THIS FACT, THI S APPEAL IS REMANDED BACK TO THE FILE OF THE LEARNED AO WHO WILL EXAMINE THE CLAIM O F THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT THE DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESS EE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED COUNSELS FROM BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 2 ND MARCH, 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2.3.2010 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE *DBN/