Ayush Kasera, Patna V. ITO, Ward 4(1), , Patna

ITA 22/PAT/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9589 (ITAT-PATNA)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH SMC , PATNA BEFORE SH. N. K. SAINI, ACCOUNTANT MEMBER ITA NO. 22/PAT./2018 : ASSTT. YEAR : 2012 - 1 3 AYUSH KASERA, C/O NARENDRA KUMAR KASERA, TARKARI BAZAR CHOWK , PATNA CITY, PATNA - 800008 VS INCOME TAX OFFICER, WARD - 4(1 ), PATNA (APPELLANT) (RESPONDENT) PAN NO. A QDPK3752G ASSESSEE BY : SH. RAKESH KUMAR, ADV. REVENUE BY : SH. ABHAY KUMAR , SR. DR DATE OF HEARING : 09 .03 .201 8 DATE OF PR ONOUNCEMENT : 13 . 0 3 .201 8 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 27.11 .2017 OF LD. CIT(A) , PATNA . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. FOR THAT THE LD. CIT(A) HAS ERRED IN PASSING EX - PAR TE ORDER. 2. FOR THAT THE ORDER PASSED IN VIOLATIVE OF PRINCIPLES OF EQUITY, NATURAL JUSTICE AND FAIR PLAY. 3. FOR THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.4,60,514/ - BY TREATING THE RETURN OF STOCK TO THE SUPPLIER AS SALES AND ESTIM ATING PROFIT THEREON @8%. 4. FOR THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSING OFFICER HAS MADE SUSTAINED EFFORT TO COMPLETE THE ASSESSMENT AND THE ADDITION WAS MADE BY HOLDING THE EXPLANATION OF THE APPELLANT AS UNSATISFACTORY AND HAS ALSO ERRED IN HOLDING THAT THE AO HAS PASSED SPEAKING ORDER. ITA NO. 22 /PAT. /201 8 AYUSH KASERA 2 5. FOR THAT THE SUSTENANCE OF ADDITION OF RS.4,60,60,514/ - BY THE LD. CIT(A) IS WRONG, ILLEGAL AND UNJUSTIFIED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 6. FOR THAT THE WHOLE OR DER IS BAD IN FACT AND LAW OF THE CASE AND IS FIT TO BE MODIFIED. 7. FOR THAT OTHER GROUNDS, IF ANY, SHALL BE URGED AT THE TIME OF HEARING OF APPEAL. 3. VIDE GROUND NOS. 1 & 2, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE EX - PARTE ORDER PASSED BY THE LD . CIT(A). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 25.03.2013 SHOWING TOTAL INCOME OF RS.2,30,070/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.6,46,520/ - BY MAKIN G THE VARIOUS ADDITIONS. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO CONFIRMED THE ADDITION MADE BY THE AO BY PASSING THE EX - PARTE ORDER. THE LD. CIT(A) MENTIONED THAT VARIOUS NOTICES WERE ISSUED BUT THERE WAS NO COMPLIANCE A ND THE LAST NOTICE WAS DATED 08.11.2017 FOR HEARING ON 17.11.2017. 6. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE. THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING THE IMPUGNED ORDER EX - PARTE . 7. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) PASSED ITA NO. 22 /PAT. /201 8 AYUSH KASERA 3 THE EX - PARTE ORDER AND CONFIRMED THE ADDITIONS MADE BY THE AO WITHOUT DISCUSSING THE ISSUE S ON MERIT. HE ALTHOUGH MENTIONED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES ISSUED FOR HEARING. HOWEVER, NOTHING IS BROU GHT ON RECORD TO SUBSTANTIATE THAT NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. I , THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES . (ORD E R PRONOUNCED IN THE COU RT ON 13 /0 3 /2018 ) SD/ - (N. K. SAINI) ACCO UNTANT MEMBER DAT ED: 13 /03 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR