Debasis Parija, Bhubaneswar V. ITO, Ward-2(3), Bhubaneswar

ITA 21/CTK/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5654 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 10-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Assessee Lawyers: BIBEK MOHANTY
• Keywords: Recovery proceedings
• Section: 145(3); 147

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO . 21 /CTK/20 20 ASSESSMENT YEAR : 2012 - 2013 DEBASIS PARIJA, FLAT NO.302, BLOCK NO.4, SUPRATIK APARTMENT, JAGAMARA, KHANDAGIRI, BHUBANESWAR. VS. ITO, WARD 2(3), BHUBANESWAR. PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI BIBEK MOHANTY , AR REVENUE BY : SHRI J.K.LENKA , DR DATE OF HEARING : 21 / 0 9 / 20 20 DATE OF PRONOUNCEMENT : 5 / 10 /20 20 O R D E R PER C.M.GARG,JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A),1, BHUBANESWAR DATED 15.2.2018 FOR THE ASSESSMENT YEAR 2012 - 2013 . 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT, THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER U/S.144 / 147 OF THE INCOME TAX ACT., 1961 IS EXCESSIVE, ARBITRARY AND BAD IN LAW. ITA NO.21/CTK/2020 ASSESSMENT YEAR : 2012 - 2013 P A G E 2 | 4 2. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE LEARNED ASSESSING OFFICER HAS RE - OPENED THE ASSESSMENT U/S.147 OF THE INCOME TAX ACT.,1961 WITHOUT HAVING JURISDICTION WHICH IS INHERENTLY BAD IN LAW. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN MAKING AN ADDITION OF RS. 1,99,98,000.00 ON PRESUMPTION AS SHORT TE RM CAPITAL GAIN WITHOUT CONSIDERING THE AVAILABLE MATERIALS ON RECORD THAT THE SALES EFFECTED WERE ON BEHALF OF OTHER PERSON AND FOR WHICH THE ORDER IS LIABLE TO BE DELETED. 4. THAT, THE LEARNED ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT OPPORTUNITIES TO THE APPELLANT WHILE MAKING THE ASSESSMENT AND PASSING THE ORDER U/S.144 /147 OF THE INCOME TAX ACT.,1961. 5. THAT THE LEARNED ASSESSING OFFICER HAS WRONGLY ADDED RS.7,33,206.00 ON ESTIMATION AS INCOME WHICH IS 8% OF GROSS RECEIPT AFTER REJECTING THE BOOKS OF ACCOUNTS BY INVOKING PROVISIONS OF SECTION 145(3) OF THE ACT WITHOUT CONSIDERING THE FACT THAT THE BOOKS OF ACCOUNTS ARE DULY AUDITED UNDER TAX AUDIT U/S.44AB OF THE INCOME TAX ACT., 1961. 6. FOR THESE AND OTHER GROUNDS TO BE ARGUED AT THE TIME O F HEARING, THE ORDER OF ASSESSMENT BE QUASHED TO MEET THE END OF JUSTICE. 3. IT HAS BEEN BROUGHT TO OUR NOTICE THAT THIS APPEAL WAS BELATEDLY FILED BEFORE THE TRIBUNAL B Y 581 DAYS . IN THIS REGARD, LD A.R. HAS FILED CONDONATION PETITION SUPPORTED BY AFFIDAVIT SWORN BY THE ASSESSEE STATING THE REASON THAT THE ORDER OF THE LD CIT(A) WAS NOT RECEIVED BY THE ASSESSEE AND ONLY ON RECEIVING THE NOTICE FOR RECOVERY OF TAX DEM AND BY THE AO, THE ASSESSEE COULD KNOW ABOUT PASSING OF THE APPELLATE ORDER ON 15.2.2018. . THEREAFTER, ON OBTAINING A CERTIFIED COPY OF ORDER ON 21.11.2019, THE APPEAL WAS FILED BEFORE THE TRIBUNAL. CONSIDERING THE REASONS GIVEN IN THE ITA NO.21/CTK/2020 ASSESSMENT YEAR : 2012 - 2013 P A G E 3 | 4 CONDONATION PETIT ION AND ON HEARING BOTH THE PARTIES , WE HEREBY CONDONE THE DELAY AND ADMIT THIS APPEAL FOR ADJUDICATION. 4. AT THE OUTSET, SHRI BIBEK MOHANTY, LD COUNSEL FOR THE ASSESSEE HAS INFORMED THAT PROPER OPPORTUNITY OF HEARING WAS NOT GRANTED AND THE APPEAL WAS D ECIDED EXPARTE. HE HAS PLACED BEFORE US THAT IF AN OPPORTUNITY OF HEARING BE GRANTED THEN THERE WILL BE NO SUCH DEFAULT IN FUTURE. 5. ON PERUSAL OF ASSESSMENT ORDER, WE HAVE FOUND THAT THE ASSESSMENT ORDER U/S.144/147 OF THE ACT WAS PASSED ON 27.12.2016. FURTHER, 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 APPEARANC E BEFORE HIM. HOWEVER, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE CONSIDER IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER BUT WITH IMPOSITION OF COST OF RS.10,000/ - ON THE ASSESSEE FOR HIS CONDUCT BEFORE THE ASSESSING OFFICER AS WELL AS LD CIT(A). THE ASSESSING OFFICER IS DIRECTED TO TAKE UP THE ISSUE FOR DENOVO CONSIDERATION ON 12.10.2020, THE DATE IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH PARTIES. THE ASSESSEE IS ALSO D IRECT ED TO DEPOSIT A COST OF RS.10,000/ - A ND FILE COPY OF THE CHALLAN OF DEPOSIT OF COST BEFORE THE ASSESSING OFFICER AS AN EVIDENCE IN COMPLIANCE OF THE ORDER OF THIS TRIBUNAL AS WELL AS TO FILE COPY OF THE SAME TO THE TRIBUNAL BEFORE 12.10.2020 . WITH THESE DIRECTIONS, ITA NO.21/CTK/2020 ASSESSMENT YEAR : 2012 - 2013 P A G E 4 | 4 THE APPEAL OF THE ASSESSE E IS RESTORED TO THE FILE OF THE AO FOR DENOVO ADJUDICATION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 5 / 10 /20 20 . S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 5 / 10 /20 20 B.K.PARIDA, SPS (OS) COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : DEBASIS PARIJA, FLAT NO.302, BLOCK NO.4, SUPRATIK APARTMENT, JAGAMARA, KHANDAGIRI, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 2(3), BHUBANESWAR. 3. THE CIT(A) - 1 , BHUBANESWAR 4. PR.CIT - 1 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//