M/S. TRIYAYUDH CONSTRUCTION PRIVATE LTD., JAIPUR V. ITO, WARD-6(5), JAIPUR

ITA 201/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6951 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 20-02-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RUNI PAUL DCIT DR DHK
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Reasonable cause
• Section: 143(3); 133A; 145(3)

Judgement Text

1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,B JAIPUR JH JESK LH-'KEKZ] YS[KK LNL; ,O LAANHI XKSLKBZ] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI SANDEEP GOS AIN, JM VK;DJ VIHY LA-@ ITA NO.201/JP/2020 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 M/S. TRIAYUDH CONSTRUCTIONS (P) LTD. E-60, GIRDHAR MARG, SIDHARTH NAGAR MALVIYA NAGAR, JAIPUR CUKE VS. THE ITO WARD 6(5) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCT 1725 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI K.L. MOOLCHANDANI, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SMT. RUNI PAUL , DCIT DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/08/2020 MN?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT: 03 /09/2020 VKNS'K@ ORDER PER SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT (A)-2, JAIPUR DATED 23.12.2019 FOR THE ASSESSMENT YEAR 2012-13 PASSED U/S 143(3) OF THE INCOME TAX ACT, 19 61 (IN SHORT THE ACT) RAISING FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS FACTUALLY AND LEGALLY ERRED IN PASSI NG EX-PARTE THE APPEAL ORDER IN EX-PARTE MANNER WITHOUT APPRECI ATING THE FACT THAT NONE OF THE ALLEGED FIXATION NOTICE WAS R ECEIVED BY THE APPELLANT AND THE APPELLANT WAS PREVENTED BY RE ASONABLE ITA NO.201/JP/2020 M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. VS ITO, WARD- 6(5), JAIPUR 2 CAUSE FROM ATTENDING THE APPEAL PROCEEDINGS. THUS T HE APPEAL ORDER SO PASSED DESERVES TO BE QUASHED SUMMA RILY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS FACTUALLY AND LEGALLY ERRED IN PASSI NG APPEAL ORDER IN SUMMARY MANNER WITHOUT DECIDING THE APPEAL ON MERITS, CONTRARY TO THE PRINCIPLES OF EQUITY AND N ATURAL JUSTICE. THUS THE APPEAL ORDER SO PASSED IS BAD IN LAW AND DESERVES TO BE QUASHED SUMMARILY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS FACTUALLY AND LEGALLY ERRED IN CONFI RMING THE ADDITION OF RS. 22,26,313/- MADE BY THE AO BY INVOK ING THE PROVISIONS OF SECTION 145(3) OF THE ACT WITHOUT AP PRECIATING THE FACTS OF THE CASE IN RIGHT PERSPECTIVE. THUS TH E ADDITION SO MADE DESERVES TO BE DELETED SUMMARILY. 2.2 DUE TO PREVAILING COVID-19 PANDEMIC CONDITION, THE HEARING OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. 3.1 APROPOS GROUND NOS. 1 TO 3 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 2.2 I HAVE PERUSED THE FACTS OF THE CASE AND THE ASSESSMENT ORDER. IN THIS CASE, THE AMPLE NUMBERS OF OPPORTUNI TIES GIVEN TO THE APPELLANT ARE TABULATED BELOW: DATE OF HEARING FIXED REMARKS 12-12-2016 NONE ATTENDED 13-02-2018 AUTHORISED REPRESENTATIVE FILED AN ADJOURNMENT LETTER 10-05-2019 NONE ATTENDED 22-05-2019 NONE ATTENDED 11-10-2019 NONE ATTENDED 20-12-2019 NONE ATTENDED ITA NO.201/JP/2020 M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. VS ITO, WARD- 6(5), JAIPUR 3 2.2.1 IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE AP PELLANT AND THE AUTHORISED REPRESENTATIVE ARE NOT INTERESTED IN CONTESTING THE APPEAL AND IN SPITE OF SUFFICIENT OPPORTUNITY AND T IME HAVE NOT SUBMITTED ANY DETAIL WHATSOEVER. ON MERITS IT SEEMS THAT ASSESSEE HAS NOTHING TO SAY IN SUPPORT OF GROUND OF APPEAL TAKEN . AFTER CAREFUL CONSIDERATION OF THE ORDER, I FIND THAT ASSESSING O FFICER HAS RIGHTLY MADE THE ADDITION, HENCE GROUND OF APPEAL ARE DISMI SSED. 3.2 DURING THE HEARING OF THE CASE, THE LD.AR PRAYED THAT THE FIXATION NOTICES FIXING THE APPEAL FOR HEARING ON 1 0-05-2019, 22-05-2019, 11-10-2019 AND 20-12-2019 WERE NEVER RECEIVED BY T HE ASSESSEE. THEREFORE, THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM MAKING COMPLIANCE OF THESE NOTICES. IN SUPPORT OF THIS CLA IM LD.AR OF THE ASSESSEE FILED AN AFFIDAVIT OF SHRI NARESH AGARWAL, DIRECTOR OF THE COMPANY , CONFIRMING THAT THE ASSESSEE HAS NOT RECE IVED ANY NOTICES. TO THIS EFFECT THE LD.AR OF THE ASSESSEE HAS FILED THE WRITTEN SUBMISSION. THE RELEVANT PORTION OF HIS PRAYER IS AS UNDER:- 7. NOW COMING TO THE PRESENT APPEAL ORDER, IT IS NOTED THAT THE ID. CIT (A) DID NOT VENTURE TO DEAL WITH T HE POINTS AT ISSUE IN RIGHT EARNEST. SHE HAD MERELY REPEATED THE FACTS OF THE CASE AS MENTIONED IN THE BODY OF THE ASSESSMENT ORDER AND T HE GROUNDS OF APPEAL AS TAKEN BY THE APPELLANT CO, SHE DID NOT VE NTURE TO DEAL WITH THE POINTS AT ISSUE ON MERITS. THUS THE APPEAL ORDER SO PASSED WITHOUT DISCUSSING THE MERITS OF THE CASE IS BAD IN LAW AND DESERVES TO BE QUASHED IN LIMINE. THE APPEAL HAS BEEN DISMIS SED SOLELY ON THE ALLEGED GROUND OF NONCOMPLIANCE OF THE FIXATION NOTICES AS PER PARA 2.2 OF THE APPEAL ORDER AS PER FOLLOWING FINDI NGS RECORDED IN PARA 2.2.1 OF THE APPEAL ORDER. `IN VIEW OF THE ABOVE IT IS CLEAR THAT THE APPELLAN T AND THE AUTHORIZED REPRESENTATIVE ARE NOT INTERESTED IN CON TESTING THE APPEAL AND IN-SPITE OF SUFFICIENT OPPORTUNITY AND TIME HAV E NOT SUBMITTED ANY ITA NO.201/JP/2020 M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. VS ITO, WARD- 6(5), JAIPUR 4 DETAIL WHAT SO EVER. ON MERITS IT SEEMS THAT ASSESS EE HAS NOTHING TO SAY IN SUPPORT OF GROUNDS OF APPEAL TAKEN. AFTER CAREFU L CONSIDERATION OF THE ORDER I FIND THAT ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION, HENCE GROUND OF APPEAL ARE DISMISSED. 8. FROM THE ABOVE FINDINGS IT IS NOTED THAT THE ID. CIT (A) HAD FAILED TO APPRECIATE THE FACTS OF THE CASE IN R IGHT PERSPECTIVE. THE APPELLANT CO. IS AN ASSOCIATE COMPANY OF M/S ABD LT D.. WHEREIN SURVEY OPERATIONS WERE CARRIED OUT U/S 133A OF THE ACT ON 13. 8.2012 INVOLVING BOTH THE COMPANIES SO IT WOULD HAVE BEEN IN THE FITNESS OF THINGS IF APPEALS IN BOTH THE CASES WOULD HAVE BEEN TAKEN UP SIMULTANEOUSLY FOR BOTH THE YEARS I.E. ASSTT.YR. 20 12-13 & 2013-14. ACCORDINGLY, THE ASSESSMENTS IN BOTH THE CASES WERE TAKEN UP SIMULTANEOUSLY BY THE ID. AO AND DECIDED IN COORDIN ATED MANNER. BUT THEREAFTER, THE ARS OF THE COMPANY BECAME INDIFFER ENT AND DID NOT DEFEND THE CASE BEFORE CIT (A) EFFECTIVELY DUE TO COMMUNICATION GAP BETWEEN THE AR AND THE APPELLANT CO. ACCORDINGLY, THE APPEALS IN THE CASE OF M/S ABD LTD. COULD NOT BE TAKEN UP EFFE CTIVELY, RESULTING IN DISMISSAL OF THE SAME. LIKE-WISE, THE APPEALS IN THE CASE OF APPELLANT WERE NOT BE TAKEN UP BY THESE ARS IN F.YR . 2016 & 2018 AND HAD STOPPED ATTENDING THE APPEAL PROCEEDINGS A S EXPLAINED IN THE CASE OF M/S ABD LTD. ACCORDINGLY NO COMPLIANCE COUL D BE MADE IN THE YEAR 2016 & 18. THE FIXATION NOTICES FIXING THE APPEAL FOR HEARING ON 10.5.2019, 22.5.2019, 11.10.2019 & 20.12.2019 WE RE NEVER RECEIVED BY THE APPELLANT CO. IN THE CIRCUMSTANCES, THE APPELLANT WAS PREVENTED BY REASONABLE CAUSE FROM MAKING COMPLIANC E OF THESE NOTICES. IN SUPPORT OF THIS CLAIM, AN AFFIDAVIT OF SHRI NARE SH AGARWAL, THE DIRECTOR OF THE CO. IS SUBMITTED HEREWITH CONFIRMIN G THEREIN ON OATH THAT THE APPELLANT CO. DID NOT RECEIVE ANY OF SUCH NOTIC E(PLACED IN PB AT PAGE NO.8 & 9). IN THE LIGHT OF THESE FACTS, YOUR HONOR WOULD APPRE CIATE THAT THE APPELLANT CO. WAS PREVENTED BY REASONABLE CAUSE FR OM MAKING COMPLIANCE OF THE FIXATION NOTICES AS MENTIONED IN THE APPEAL ORDER. MORE-OVER, FROM THE COMMUNICATION AS EXCHANGED, IT IS SEEN THAT THE APPELLANT CO. HAD BEEN SINCERELY TRYING TO GET THE APPEALS DECIDED IN CONSOLIDATED MANNER AS EARLY AS POSSIBLE ALONG-WITH THE APPEALS IN THE ASSOCIATE CO. ABD LTD. AS EVIDENT FROM THE SET-ASID E APPEAL PROCEEDINGS. THE CO. HAD BEEN ATTENDING THE SET ASI DE PROCEEDINGS REGULARLY AND PROPERLY AND HAD ALSO INFORMED THIS F ACT TO THE ID. CIT (A) IN THE WRITTEN SUBMISSIONS. THUS FROM THE COND UCT OF THE APPELLANT CO., IT IS EVIDENT THAT AT NO STAGE THE APPELLANT H AD EVER TRIED TO AVOID TO ATTEND THE APPEAL PROCEEDINGS. IN THE CIRCUMSTA NCES, THE ID. CIT (A) HAS INCORRECTLY OBSERVED THAT THE APPELLANT WAS NOT INTERESTED IN CONTESTING THE APPEAL AND IT HAD NOTHING TO SAY IN SUPPORT OF THE APPEAL TAKEN. ITA NO.201/JP/2020 M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. VS ITO, WARD- 6(5), JAIPUR 5 LASTLY, EVEN OTHER-WISE, THE APPEAL HAS NOT BEEN DE CIDED ON MERITS AS PER JUDICIAL DISCIPLINE ON THE POINT. THU S THE ORDER SO PASSED WITHOUT GOING INTO THE MERITS OF THE CASE IS BAD IN LAW AND THE SAME DESERVES TO BE QUASHED. 3.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THIS STAGE, WE ARE NOT GOIN G INTO THE MERITS OF THE CASE, HOWEVER, WE NOTICED THAT ASSESSEE SHOUL D BE GIVEN CHANCE TO CONTEST THE CASE BEFORE THE LD. CIT(A) AS THE ASSES SEE HAD NOT RECEIVED THE NOTICES FOR HEARING OF THE APPEAL BEFORE THE LD . CIT(A) ON 23-12- 2019. EVEN THE RIGHTS OF THE REVENUE ARE ALSO NOT G OING TO BE PREJUDICED. THEREFORE, IN THE INTEREST OF EQUITY A ND JUSTICE, THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE LD. CIT(A) WITH DIRECTIONS TO DECIDE IT AFRESH TAKING INTO CONSIDERATION THE G ROUNDS RAISED IN FORM NO. 35. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.201/JP/2020 M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. VS ITO, WARD- 6(5), JAIPUR 6 4.0. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/09/2 020. SD/- SD/- JESK LH-'KEKZ LANHI XKSLKBZ (RAMESH C. SHARMA) (SANDEEP GOSAI N) YS[KKLNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03 /09/2020. *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - M/S. TRIAYUDH CONSTRUCTIONS PVT. LTD. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT-THE ITO, WARD- 6(5), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR . 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 201/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSTT. REGISTRAR