Shiv Mangal Jauhari , Kanpur V. Income Tax Officer-5(3) , Kanpur

ITA 219/LKW/2013

• Counselvise Citation: 21923714 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-05-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: P K KAPOOR
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.219/LKW/2013 ASSESSMENT YEAR:2002 - 03 SHRI SHIV MANGAL JAUHARI, 27/6, BIRHANA ROAD, KANPUR. PAN:AAVPM7955K VS. INCOME TAX OFFICER - 5(3), KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI ALOK MITRA, D. R. DATE OF HEARING 30/05/2014 DATE OF PRONOUNCEMENT 1 3 /06/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, KANPUR DATED 10/12/2012 FOR ASSESSMENT YEAR 2002 - 2003. 2. GROUND NO. 1,2 & 3 ARE AS UNDER: 1. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS HAVE BEEN SET - OUT IN BRIEF ANNEXURE - I, HERETO, THE 'CIT(A)' HAS ACTED ILLEGALLY IN DECIDING THE APPEAL EX - PARTE. 2. BECAUSE THE 'CIT(A)' HAS ERRED IN HOLDING THAT 'THE ASSESSEE IS NOT INCLINED TO COOPERATE IN THE APPELLANT PROCEEDINGS' WHICH IS CO NTRARY TO THE MATERIAL AND INFORMATION AVAILABLE ON RECORD (PART OF WHICH HAS BEEN SET - OUT IN ANNEXURE - I TO THE GROUNDS OF APPEAL), AS REFERRED TO ABOVE. 3. BECAUSE IN ANY CASE AND WITHOUT PREJUDICE TO THE PLEADINGS MADE IN THE FOREGOING GROUND BEING GROU ND NO. 2, IT IS CONTENDED THAT THE 'CIT(A)' WAS UNDER A STATUTORY 2 OBLIGATION TO DECIDE THE APPEAL, EVEN IN EX - PARTE PROCEEDINGS, ON THE BASIS OF MATERIAL/INFORMATION AS HAD BEEN BROUGHT ON RECORD IN TERMS OF THE AVERMENTS MADE IN THE STATEMENT OF FACTS, WH ICH IS A PART OF PRESENT GROUNDS OF APPEAL AND MARKED AS ANNEXURE - I (A). 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IT IS NOTED BY CIT(A) IN PARA 2 OF HIS ORDER THAT FIRST NOTICE WAS ISSUED ON 15/06/2009 BUT THE ASSESSEE HAS TAKEN 10 ADJOUR NMENTS ONE AFTER THE OTHER ON SOME PRETEXT OR THE OTHER. THE LAST NOTICE DATED 06/12/2012 HAS COME BACK UNSERVED. THEREAFTER, THE CIT(A) HAS OBSERVED THAT THE ASSESSEE IS NOT INCLINED TO CO - OPERATE IN THE APPELLATE PROCEEDINGS AND THEREAFTER , THE CIT(A) HAS DECIDED THE APPEAL IN SUMMARY MANNER EVEN WITHOUT DISCUSSING THE MATERIAL ON RECORD. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE , THE ASSESSEE SHOULD BE AFFORDED ONE MORE OPPORTUNITY AND THE MATTER SHOULD BE RESTORED TO CIT(A) FOR FRESH DECISION. HE UNDERTOOK THAT IF FRESH OPPORTUNITY IS PROVIDED, THE ASSESSEE WILL CO - OPERATE WITH THE CIT(A). 4. LEARNED D.R. OF THE REVENUE SUBMITTED THAT SINCE THE ASSESSEE HAS TAKEN 10 ADJOURNMENTS BEFORE THE CIT(A), THE ASSESSEE DOES NOT DESERVE ANY MORE OPPORTUNIT Y. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT ALONG WITH THE APPEAL FILED BEFORE CIT(A), THE ASSESSEE HAS FILED STATEMENTS OF FACTS (SOF) RUNNING INTO 7 PAGES. IN THIS SOF , THE ASSESSEE HAS ALSO PLACED RELIANCE ON A JUDGMENT OF SPECIAL BE NCH OF THE TRIBUNAL RENDERED IN THE CASE OF COLONIZER VS. ACIT 41 IT D 57. IN VIEW OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT EVEN IF THE APPEAL WAS DECIDED EX - PARTE QUA THE ASSESSEE FOR THE REASON THAT THE ASSESSEE WAS NOT CO - OPERATING, THE CIT (A) SHOULD HAVE CONSIDERED THE SOF SUBMITTED BY THE ASSESSEE. UNDER THESE FACTS AND IN THE INTEREST OF JUSTICE, WE FEEL THAT ONE MORE OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE BY ALSO KEEPING IN VIEW THE UNDERTAKING GIVEN BY THE LEARNED AR OF THE 3 ASS ESSEE THAT IN THE SECOND ROUND , THE ASSESSEE WILL CO - OPERATE WITH THE CIT(A). HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. WE W ANT TO MAKE IT CLEAR THAT SINCE THE MATTER IS RESTORED TO CIT(A) FOR FRESH DECISION, WE ARE NOT MAKING ANY COMMENT ON THE MERIT OF THE ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /06/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR