Santilata Behera, Angul V. ITO, Dhenkanal

ITA 210/CTK/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4184 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 23-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 25-05-2010
• Court: TRIBUNAL
• Department Lawyers: A S MONDAL
• Assessee Lawyers: MAHAVIR PRASAD MUNDRA
• Keywords: Gross profit estimation; Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK (SMC) BENCH, CUTTACK BEFORE HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER / I.TA.NO . 210/CTK/2010 / ASSESSMENT YEAR 2006 - 07 SANTILATA BEHERA, PROP. M/S.SRI RAM FILLING STATION, AT: BADADANADA SAHI, TALCHER TOWN, TALCHER AISPB 8310 J - - - VERSUS - . INCOME - TAX OFFICER, WARD 2, DHENKANAL. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI MAHAVIR PRASAD MUNDRA, AR FOR THE RESPONDENT : SHRI A.S.MONDAL, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THE ASSESSEE IS IN APPEAL AGAINST ORDER D T.15.3.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - I, BHUBANESWAR CONFIRMING THE ADDITION OF RS.2,95,310 MADE BY THE ASSESSING OFFICER ESTIMATING GROSS PROFIT @1.71% FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE BESIDES DISPUTING VIDE GROUNDS N.1 AND 3 THE ADDITION ON ACCOUNT OF ESTIMATION OF GP UPHELD BY THE LEARNED CIT(A), ALSO DISPUTED VIDE GROUND NO.2 THE EXPARTE ORDER PASSED BY HIM. IN SUPPORT OF GROUND NO.2 THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE FIRST APPELLATE PROCEEDING S, THE CASE WAS FIXED FOR HEARING ON 12.3.2010 AND THE ASSESSEE FILED A PETITION DT.9.3.2010 SEEKING ADJOURNMENT TO ANOTHER DATE , BUT THE LEARNED CIT(A) WITHOUT CONSIDERING THE SAID PETITION DT.9.3.2010 HAS PASSED THE IMPUGNED ORDER. THEREFORE, HE PRAYED T O RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT(A) TO CONSIDER THE SAME AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED DR DID NOT DISPUTE THE ABOVE FACTS SUBMITTED BY THE LEARNED COUNSEL OF THE AS S ESSEE, S AVE AND EXCEPT REL YING ON THE ORDER OF THE LEARNED CIT(A). 3. HAVING HEARD BOTH PARTIES AND CONSIDERING THE FACT THAT THE LEARNED CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT CONSIDERIN G THE PETITION DT.9.3.2010 FILED BY THE 2 ASSESSEE BEFORE HIM SEEKING ADJOURNMENT AND PASSE D EXPARTE ORDER UPHOLDING THE ADDITION OF RS.2,95,310 MADE ON ESTIMATING GP @ 1.71%, I AM OF THE CONSIDERED VIEW THAT THE EXPARTE ORDER SO PASSED BY THE LEARNED CIT(A) IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. IN VIEW THEREOF, I SET ASIDE THE IMPUG NED ORDER OF THE LEARNED CIT(A) IN SO FAR AS THE SUSTENANCE OF THE ADDITION MADE ON ACCOUNT OF GP ESTIMATION AND RESTORE THE ISSUE TO HIS FILE FOR CONSIDERATION AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE ISSUE IS R ESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR FRESH CONSIDERATION, I REFRAINED IN GIVING ANY FINDINGS ON MERIT AS TO THE ADDITION IN QUESTION. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 27.07.2010 SD/ - (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 27.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : / THE RESPONDENT : THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADH EE SENIOR.PRIVATE SECRETARY.