Mamata Mohanty, L/H. of Late Naresh Chandra Mohanty, Puri V. ITO, Puri Ward, Puri

ITA 20/CTK/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9918 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 18-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 144

Judgement Text

P A G E 1 | 4 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. 20 /CTK/201 8 ASSESSMENT YEAR : 201 0 - 2011 MAMATA MOHANTY, LEGAL HEIR OF LATE NARESH CHANDRA MOHANTY, AT: DUTTATOTA, PURI. VS. ITO, PURI WARD, PURI PAN/GIR NO. ABDPM 4411 H (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE (WRITTEN SUBMISSION) REVENUE BY : SHRI SU BH ENDU DATTA , DR DATE OF HEARING : 25 /0 9 / 2018 DATE OF PRONOUNCEMENT : 25 /0 9 / 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) - 2 BHUBANESWAR DATED 28.6.2017 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT THE ORDER OF ASSESSMENT IS AGAINST THE SETTLED PRINCIPLE OF LAW AND AGAINST THE MATERIALS AVAILABLE ON RECORD. 2. FOR THAT THE ORDER OF ASSESSMENT IS IN CONTRAVENTION TO THE RETURN SUBMITTED BY THE ASSESSEE AND THEREFORE, IS NOT TENABLE IN THE EYE OF LAW. ITA NO. 20/CTK/2018 ASSESSMENT YEAR : 2010 - 2011 P A G E 2 | 4 3. FOR THAT THE ORDER OF ASSESSMENT IS HIGHLY ARBITRARY, EXORBITANT AND THE SAME BEING MADE WITHOUT ANY REASONABLE CAUSE AND THE MATERIAL AT HAND, THE SAME SHOULD H AVE BEEN SET ASIDE BY THE LEARNED APPELLATE COURT. 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) DISMISSED THE APPEAL IN THE GROUND OF NON APPEARANCE WHICH IS LIABLE TO SET ASIDE. 5. FOR THAT BOTH THE FORUMS BELOW ARE WRONG IN HOLDING THE INCOME OF THE APPELLANT IN SUCH A HIGHER SIDE AND THE SAME BEING EX - PARTE IN NATURE, ARE LIABLE TO BE SET ASIDE. 6. FOR THAT THE IMPUGNED ORDER OF ASSESSMENT AND THE IMPUGNED ORDER PASSED BY THE FIRST APPELLATE COURT BEING MADE ON SURMISES AND CONJECTURE , THE SAID ORDERS ARE REQUIRED TO BE SET ASIDE BY INTERFERENCE OF THIS HONORABLE COURT. 7. FOR THAT THE ASSESSMENT AS HAS BEEN MADE UNDER SECTION 144 OF THE INCOME TAX ACT IS BAD IN LAW IN VIEW OF THE FACT THAT THE APPELLANT IS A REGULAR ASSESSEE AND HIS ASSESSMENT WAS COMPLETED EARLIER BASING ON THE RETURN SUBMITTED BY THE ASSESSEE. THE LEARNED FORUMS BELOW HAS NOT INDICATED ANY REASON OF DIS - BELIEVING THE STATEMENT OF INCOME SUBMITTED IN COURSE OF FILLING OF RETURN FOR WHICH THE IMPUGNED ORDERS ARE LIABL E TO BE SET ASIDE. 8. FOR THAT BOTH THE IMPUGNED ORDERS HAVE BEEN PASSED VIOLATING THE PRINCIPLES OF NATURAL JUSTICE FOR WHICH THE SAME ARE LIABLE TO BE SET ASIDE/ QUASHED. 9. FOR THAT THE LEARNED ASSESSING OFFICER REJECTED THE AUDITED RETURN AND ESTIMAT ED THE PROFIT @ 4% OF THE GROSS TURNOVER WHILE COMPLETING THE ASSESSMENT U/S 144 OF THE INCOME TAX ACT WHICH HAS GOT NO REASONABLE BASIS IN THE PRESENT FACT AND CIRCUMSTANCES OF THE CASE. 10. FOR THAT THE ASSESSEE AT THE TIME OF ASSESSMENT SUFFERING KIDNE Y DAMAGE AND TREATMENT AT BANGALORE DIED BEFORE COMPLETION OF ASSESSMENT FOR WHICH BOOKS OF ACCOUNT COULD NOT PRODUCED BEFORE THE ASSESSING OFFICER. ITA NO. 20/CTK/2018 ASSESSMENT YEAR : 2010 - 2011 P A G E 3 | 4 11. FOR THAT THE IMPUGNED ORDERS PASSED BY BOTH THE COURTS BELOW ARE OTHERWISE BAD, ILLEGAL AND LIABLE T O BE SET ASIDE . 12. FOR THAT THE APPELLANT CRAVES LEAVE TO SUBMIT DETAILS AT THE TIME OF HEARING. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HEARING. HOWEVER, A WRITTEN SUBMISSION IS FILED BY THE ASSESSEE, WHICH IS ON REC ORD. 4. WE FIND THAT THE ASSESSEE IN GROUND NO.4 & 5 HAS AGITATED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE EXPARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. ON PERUSAL OF THE ORDER OF THE CIT(A), WE OBSERVE THAT THE CIT(A) HAS ALLOWED SEVERAL OPPORTUNITIES TO THE ASSESSEE AND THE ASSESSEE HAS NOT PUT IN APPEARANCE BEFORE HIM. HOWEVER, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE CONSIDER IT APPROPRIATE TO REST ORE THE MATTER TO THE FILE OF THE CIT(A) BUT WITH IMPOSITION OF COST ON THE ASSESSEE FOR HIS CONDUCT BEFORE THE CIT(A). WE, THEREFORE, DIRECT THE ASSESSEE TO DEPOSIT A COST OF RS. 5 ,000/ - ON OR BEFORE 31.10 .2018. THE ASSESSEE IS FURTHER DIRECTED TO FILE COPY OF THE CHALLAN OF DEPOSIT OF COST BEFORE THE CIT(A) AS AN EVIDENCE IN COMPLIANCE OF THE ORDER OF THIS TRIBUNAL AS WELL AS TO FILE COPY OF THE SAME TO THE TRIBUNAL. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE CIT(A ) FOR FRESH ADJUDICATION. ITA NO. 20/CTK/2018 ASSESSMENT YEAR : 2010 - 2011 P A G E 4 | 4 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25 /0 9 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 25 /0 9 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : MAMATA MOHANTY, LEGAL HEIR OF LATE NARESH CHANDRA MOHANTY, AT: DUTTATOTA, PURI. 2. THE RESPONDENT. ITO, PURI WARD, PURI 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//