Smt. Anjali Prakash, V. Income Tax Officer-2(1), Kanpur

ITA 21/LKW/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4700 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 18-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANJALI PRAKASH
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 21/LKW/2016 ASSESSMENT YEAR: 2003 - 04 SMT. ANJALI PRAKASH SHREE GANESH FARMS VILLAGE P IPALIA, KICHHA, DISTT. UDHAM SINGH NAGAR UTTARAKHAND V. INCOME TAX OFFICER RANGE 2(1) KANPUR T AN /PAN : (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SMT. ANJALI PRAKASH (ASSESSEE) RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 09 02 201 6 DATE OF PRONOUNCEMENT: 19 02 201 6 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACT S IN PASSING THE ORDER WHICH IS ILLEGAL, IMPROPER AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED THE IMPUGNED ORDER STATING THAT THE APPELLANT'S COUNSEL HAS FILED A LETTER SUBMITTING THAT HE IS NOT PRESSING ON THE GROUNDS OF APPEAL : - 2 - : NO. 1 TO 7 AND 8 & 9 (ALL), WHEREAS NO SUCH PERMISSION OR INSTRUCTION WER E GIVEN BY THE APPELLANT TO HER COUNSEL AND A COPY OF THE LETTER WRITTEN TO THE AR BY THE APPELLANT AND AN AFFIDAVIT OF THE APPELLANT FORMS A PART OF ENCLOSURES WI TH THIS APPEAL AND IT WOULD BE IN THE INTEREST OF JUSTICE THAT THE LORDSHIPS GIVE AN OPPORTUNI TY TO THE APPELLANT TO BE HEARD AND DECIDE THE APPEAL ON MERITS. 4. ON PROPER CONSIDERATION OF THE FACT S AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER HAS ERRED IN ADDING A S UM OF RS.11,55,000/ - AS INCOME FROM UNEXPLAINED SOURCES AS AGAINST INCOME FR OM AGRICULTURE AS DECLARED BY THE ASSESSEE. 5. ON A PROPER APPRAISAL OF THE FACTS AN D CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE PLETHORA OF EVIDENCES, IN THE S HAPE OF STATEMENT OF LAND OWNER CONFIRMING HAVING GIVEN LAND ON LEASE AND RECEIVED LAND RENTAL S, CONFIRMATIONS OF SALES, AND IN OFFICE REPORTS AS MENTIONED IN TH E ASSESSMENT ORDER IT CANNOT BE SAID THAT THE SUM OF RS. 11,55,000 / - AS CLAIMED AS AGRICULTURAL INCOME IS NOT INCOME FROM AGRICULTURE. 6. IN ANY CASE AND IN ALL CIRCUMSTANCES OF THE CASE AND THE EXPLANATIONS FILED BY THE ASSESSEE, IT CANNOT B E SAID THAT THE ASSESSEE IS NOT CARRYING ON AGRICULTURE AND THE INCOME IS NOT INCOME FROM AGRICULTURE. 7. ON PROPER CONSIDERATION OF THE CIRC UMSTANCES OF THE CASE AND IN NO CIRCUMSTANCES CAN IT BE SAID TH AT THE APPELLANT IS NOT CARRYING ON AGRICULTURAL ACTIVITIES. 8. THERE IS NO MATERIAL ON RECORD TO DISBELIEVE OR DISPROVE THE CLAIM OF THE ASSESSEE, THE ASSESSING OFFICER WAS NOT JUSTIF IED IN TREATING THE INCOME FROM AGRICULTURE AS INCOME FROM UNEXPLAINED S OURCES. 9. THE ASSESSING OFFICER HAS ERRED IN GIVING CREDENCE TO DOCUMENTS WHOSE CORRECTNESS IS DOUBTFUL AND HAS IGNOR ED THE REPORT OF THE : - 3 - : INCOME TAX OFFICER, HALDWANI BASED ON SPOT ENQUIRIES MADE BY HIM, WHICH REPORT BEING MORE AUTHENTIC AND HAVING MORE C REDENCE AS COMPARED TO OTHER EVIDENCE. 10. THE ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING A SUM OF RS. 20,000 / - OUT OF EXPENSES OF RS. 68,0817 - MADE ON EARNING THE COMMISSION INCOME ON AD HOC BASIS. 11. THE ASSESSING OFFICER HAS WRONGLY DETERMINED A TAX LIABILITY OF RS. 5,02,831/ - . 12. THE ASSESSMENT ORDER IS CONTRARY TO FACTS, BAD IN LAW, AGAINST THE CANONS OF JUSTICE AND AB INITIO VOID BE QUASHED. 13. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN IGNORING THE WRITTEN SUBMISSIONS AND PAPE R BOOK FILED BY THE APPELLANT AND HAS SUMMARILY DISMISSED THE APPEAL FILED BY THE APPELLANT W ITHOUT GIVING AN OPPORTUNITY OF HEARING TO THE APPELLANT ON THE BASIS OF A LET TER FILED BY THE COUNSEL OF THE APPELLANT WHO WAS ACTING WITHOUT INSTRUCTION OR PERMI SSION. 14. THE APPELLANT CRAVE S LEAVE TO ADD, AMEND, ALTER OR WITHDRAW ANY GROUND OF APPEAL OR RAISE ANY NEW GROUND OF APPEAL DURING THE PENDENCY OF APPEAL. 2 . THE ASSESSEE IN PERSON APPEARED BEFORE THE TRIBUNAL AND DURING THE COURSE OF HEARING SHE HAS CONTE NDED THAT THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ASSESSMENT ORDER BEFORE THE LD. CIT(A). INSTEAD OF REPRESENTING THE CASE OF THE ASSESSEE, HER COUNSEL, SHRI. RAKESH GARG, ADVOCATE DID NOT PRESS THE GROUNDS RAISED BEFORE THE LD. CIT(A) AND THE LD. C IT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE. THIS ORDER WAS NOT COMMUNICATED TO THE ASSESSEE, BUT LATER ON WHEN THE ASSESSEE RECEIVED A NOTICE IN OTHER APPEALS, SHE TRIED TO FIND OUT THE OUTCOME OF THE APPEAL FILED FOR THE IMPUGNED ASSESSMENT YEAR. LA TER ON SHE OBTAINED A COPY OF THE ORDER UNDER RTI AND ON RECEIPT OF THE : - 4 - : ORDER OF THE LD. CIT(A) SHE FILED THE APPEAL BEFORE THE TRIBUNAL. IN SUPPORT OF HER CONTENTION, THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT DEPOSING THEREIN THAT SHE HAS NEVER AUTHORIZED HER COUNSEL FOR NOT PRESSING THE GROUNDS OF APPEAL BEFORE THE LD. CIT(A). THE COUNSEL FOR THE ASSESSEE DID NOT PROSECUTE THE APPEAL OF THE ASSESSEE AND THE APPEAL WAS DISMISSED BEING NOT PRESSED. THE ASSESSEE HAS FURTHER CONTENDED THAT SINCE THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) BY NOT PROSECUTING THE APPEAL BY THE COUNSEL, THE ORDER OF THE LD. CIT(A) MAY BE RECALLED AND IT MAY BE REHEARD AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 . THE LD. D.R. HAS SIMPLY ARGUED THAT SINCE THE COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE GROUNDS RAISED BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSION S, WE FIND THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE APPEAL ON MERIT. HE RATHER DISMISSED THE APPEAL OF THE ASSESSEE BEING NOT PRESSED BY THE COUNSEL OF THE ASSESSEE. THE ASSESSEE APPEARED IN PERSON BEFORE THE TRIBUNAL AND FILED AN AFFIDAVIT DEPOSING T HEREIN THAT SHE NEVER AUTHORIZED HER COUNSEL FOR NOT PROSECUTING HER APPEAL. THERE WAS NO REASON AS TO WHY THE ASSESSEE HAS ASKED THE COUNSEL OF THE ASSESSEE NOT TO PRESS THE GROUNDS OF APPEAL RAISED BEFORE THE LD. CIT(A). KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL IN FEW LINES ON THE GROUND THAT THE COUNSEL FOR THE ASSESSEE DID NOT PRESS THE GROUNDS. BUT NOW THE ASSESSEE HAS COME FORWARD WITH A PLEA THAT HER COUNSEL HAS MADE A STATEMENT BEFORE THE LD. CIT(A) FOR NOT TO PRESS THE GROUNDS OF APPEAL WITHOUT HER AUTHORITY. IN THE LIGHT OF THESE FACTS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND THE MATTER IS RESTORED TO HIS FILE WITH A DIRECTION TO RE - : - 5 - : ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GAR ODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH 1 . APPELLANT FEBR UARY, 2016 JJ: 0902 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR