SHRI RAVI RAMNANI, TONK V. INCOME TAX OFFICER, TONK

ITA 220/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3639 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 13-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Assessee Lawyers: S C JAIN
• Keywords: Principle of natural justice; Corroborative evidences; TDS
• Section: 143(3); 40(a)(ia)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 220/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2012-13 SHRI RAVI RAMNANI PROP. MISS. RAMNANI DISTRIBUTION SUNRISE TOWERS, BUS STAND NIWAI, TONK (RAJ) CUKE VS. THE ITO WARD- TONK TONK LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ASBPR 5206 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.C. JAIN, CA JKTLO DH VKSJ LS@ REVENUE BY:SMT. POONAM RAI, DCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/06/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 20 /06/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A)-3, JAIPUR DATED 3-01-2018 FOR THE ASSESSM ENT YEAR 2012-13 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. 1. THAT THE LD. CIT(A)-III DESPITE GIVING ADJOURN MENT OF THE CASE FOR 08-01-2018 PASSED THE ORDER ON 03-01-2 018 BY DISMISSING THE APPEAL AND THAT ALSO WITHOUT ADJUDIC ATING THE GROUNDS TAKEN IN FORM 35. ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 2 2. THAT THE ASSESSING OFFICER HAD ERRED IN LAW AS W ELL AS ON FACTS IN INVOKING PROVISIONS OF SECTION 40A(IA) FOR THE REASON OF TDS NOT MADE U/S 194H AND THEREBY MADE DISALLOWANCE OF PAYMENT OF RS. 16,70,445/-. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 2. THE HEARINGS IN THIS CASE WAS INITIALLY FIXED FOR 27-11-2017. ON THAT DATE 27-11-2017 NEITHER APPELLA NT ATTENDED NOR FILED ANY ADJOURNMENT LETTER. THE NOTI CE AGAIN ISSUED FIXING FOR HEARING ON 18-122017. ON THAT DAT E 18-12- 2017 NEITHER APPELLANT ATTENDED NOR FILED ANY ADJOU RNMENT LETTER. THE NOTICE AGAIN ISSUED FIXING FOR HEARING ON 02-01- 2018. ON THAT DATE 02-01-2018 NEITHER APPELLANT ATT ENDED NOR FILED ANY ADJOURNMENT LETTER. UNDER THE CIRCUMSTANC ES, IT APPEARS THAT THE APPELLANT DOES NOT WANT TO PURSUE THIS APPEAL, THEREFORE, I HAVE NO OPTION BUT TO DECIDE T HE APPEAL ON MERIT ON THE BASIS OF MATERIAL AVAILABLE ON RECO RD. 3. APPELLANT HAS CHALLENGED THE SAID ORDER WITH THE FOLLOWING GROUNDS OF APPEAL THAT HAS BEEN RAISED IN THIS APPEAL . 4. THE PRESENT APPEAL IS AGAINST THE ASSESSMENT ORDER U/S 143(3) OF THE ACT. I HAVE CAREFULLY PERU SED THE ORDER OF APAL AND THE ASSESSMENT ORDER. AS ALREADY DISCUSSED ABOVE, THE APPELLANT HAS FAILED TO OFFER ANY EXPLA NATION FOR SUBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED BY HIM D ESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CA SE OF H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 WHEREI N THE HON'BLE COURT HAS HELD THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGEMENT IN PLACE OF THE JUDGEM ENT OF THE ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 3 AO UNLESS IT IS SHOWN THAT THE JUDGEMENT OF THE WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS. IN THE INSTANT CASE, THE APPELLANT HAS NOT BEEN ABL E TO SHOW THAT THE DECISION OF THE AO WAS ARBITRARY, BIA SED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BA SIS. I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE AO. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED THAT THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING BEFO RE THE LD. CIT(A)-III, JAIPUR ON 18 TH DEC. 2017 WHICH WAS ATTENDED AND THE CASE WAS ADJO URNED FOR 08-01-2018. THE LD.AR FURTHER SUBMITTED THAT TH E DATE 02-01-2018 GIVEN IN THE LD. CIT(A)S ORDER AND STATEMENT OF NO N-ATTENDANCE ON 18 TH DEC. 2017 IS A TECHNICAL ERROR AS THE DATE GIVEN WA S 08-01-2018 AND THE NOTICE FOR 2-01-2018 IS ALSO NOT IN THE KNOWLEDGE O F THE ASSESSEE OR THE A.R. THE LD.AR OF THE ASSESSEE FURTHER SUBMITTED TH AT THE ASSESSEE BE GIVEN CHANCE TO CONTEST THE CASE BEFORE THE LD. CIT (A) FOR WHICH THE LD.AR OF THE ASSESSEE'S FILED THE DETAILED WRITTEN SUBMISSION AS UNDER:- 1. THE APPEAL WAS INSTITUTED ON 25TH MARCH, 2015 AN D AS BEING SPECIFIED IN THE APPELLATE ORDER WAS FIXED FOR HEAR ING ON 27TH NOV. 2017. NOTICE FOR SUCH DATE WAS NOT SERVED ON THE AS SESSEE AND ASSESSEE WAS NOT AWARE OF THE DATE SO FIXED AND THUS REMAINE D UN ATTENDED AS PER RECORDS. 2. HEARING OF THE APPEAL WAS AGAIN FIXED FOR 18TH DEC. 2017 WHICH WAS ATTENDED AND THE CASE WAS ADJOURNED FOR 0 8.01.2018. ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 4 3. REFERENCE OF FURTHER DATE 02.01.2018 GIVEN IN T HE ORDER AND STATEMENT OF NON-ATTENDANCE ON 18TH DEC. 2017 IS A TECHNICAL ERROR AS THE DATE GIVEN WAS 08-01-2018 AND THE NOTICE FOR 2. 01.2018 IS ALSO NOT IN THE KNOWLEDGE OF THE ASSESSEE OR THE AR. 4. THE CIT(A)-III, JAIPUR FOR THE REASON OF NON-AT TENDANCE ON THE DIFFERENT DATES AS SPECIFIED IN PARA - 2 PASSED THE ORDER DISMISSING THE APPEAL WITHOUT ADJUDICATING THE GROUNDS OF APPEAL S IMPLY FOR THE REASON OF NONATTENDANCE AND FURNISHING OF NO SUBMIS SION RELATING THE GROUNDS OF APPEAL. 5. THE APPELLATE ORDER SENT BY POST WAS SERVED ON T HE ASSESSEE AND AFTER SERVICE OF THE ORDER ON 18.01.2018, REQUE ST FOR RESTORATION OF APPEAL BEFORE THE CIT(A)- III, JAIPUR WAS MOVED STATING THAT THE CASE WAS NOT FIXED FOR 2.01.2018 BUT WAS ADJOURNED ON LA ST HEARING OF 18- 12-2017 FOR 08.01.2018. HOWEVER, THE CIT(A)- III, JAIPUR FOR THE NON- ATTENDANCE AND NON-CO-OPERATION DESPITE PROVIDING T HE OPPORTUNITY HAVE PASSED THE ORDER BY GIVING REFERENCE OF THE AP EX COURT JUDGMENT IN CASE OF H.M. ESUFALI H.M. ABDULALI (1983) 90 ITR 271 WITHOUT ADJUDICATING THE GROUNDS OF APPEAL FOR THE SIMPLE R EASON OF NO MATERIAL BEING PLACED BEFORE HIM DURING THE APPELLATE PROCEE DINGS. IN RESPECT OF THE APPEAL BEFORE THE BENCH, WE HUMBL Y SUBMIT THAT THE APPEAL WAS FILED BY SOME OTHER CHARTERED A CCOUNTANT OF TONK DISTT., (RAJ), AFTER THE ASSESSMENT ORDER AND ACCOR DINGLY THE NOTICE AS INDICATED DATED 27.11.2017 BT THE CIT-APPEAL WAS NE ITHER IN THE KNOWLEDGE OF THE ASSESSEE NOR OF THE UNDERSIGNED SI NCE THE UNDERSIGNED HAD ACCEPTED THE CASE FOR PRESENTATION WHEN THE NOTICE OF HEARING FOR 18TH DEC. 2017 WAS SERVED UPON THE ASSE SSEE. THE HEARING ON 18.12.2017 WAS ATTENDED BEFORE THE CIT(A)-III, J AIPUR BY THE UNDERSIGNED AND IT WAS SUBMITTED THAT THE PENDING A PPEALS RELATING TO THE ASSESSMENT YEARS 2011 - 12, 13 - 14 AND 14 - 15 ON THE IDENTICAL ISSUE AS BEING INVOLVED IN A.Y. 12 - 13 MAY KINDLY BE CLUBBED AND THEREFORE, ALL THE 4 APPEALS BE TAKEN UP FOR HEARIN G TOGETHER AND THE CASE MAY KINDLY BE ADJOURNED FOR THE NEXT DATE. COP IES OF THE NOTICE SERVED FOR 18.12.2017 FOR HEARING OF APPEAL AND THE REQUEST FOR GRANT OF TIME AND CONSOLIDATION OF THE APPEALS ARE ENCLOS ED AS ANNEXURE - A & B. THE CIT(A)-III, JAIPUR ON THE REQUEST HAD ADJOURNED THE CASE FOR 8.01.2018. THE CIT -APPEAL, HOW HAD STATED THAT HEARING FIXED FOR ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 5 18.12.2017 BEING NOT ATTENDED AND THEREFORE, THE CA SE WAS RE-FIXED FOR 2.01.2018. THE DATE OF 02-012018 REMAINED UNATTENDE D WAS FOR THE REASON THAT THE UNDERSIGNED WAS NOT HAVING THE KNOW LEDGE OF THE HEARING FOR 2ND JAN. 2018 AS THE CASE WAS ADJOURNED ON THE LAST DATE FOR 8TH JAN. 2018. ON 08.01.2018 WHEN THE UNDERSIGN ED ATTENDED THE OFFICE OF THE CIT, IT WAS INFORMED BY THE CIT(A)-II I, JAIPUR THAT THE FILE IS NOT TRACEABLE SO THE NEW NOTICE WILL BE ISS UED/SENT. THE CIT(A)-III, JAIPUR FOR THE REASON OF NON-ATTEND ANCE, PASSED THE ORDER WHICH WAS SERVED UPON THE ASSESSEE AND ON 18.01.2018 AN APPLICATION WAS MOVED BEFORE THE CIT( A)-III, JAIPUR FOR RESTORATION OF APPEAL WHICH WAS NOT CONSIDERED AS THE CIT(A)- III, JAIPUR SHOWED HIS INABILITY FOR RESTORATION OF THE APPEAL. COPY OF APPLICATION FILED FOR RESTORATION OF APPEAL INDI CATING THE FACTS WITH THE CIT(A)-III, JAIPUR ENCLOSED AS ANNEXURE - C. IT IS THEREFORE, PRAYED BEFORE THE BENCH THAT THE I NADVERTENT MISTAKE OF CLERICAL NATURE DESPITE BEING THE ADJOUR NMENT GRANTED TO THE A.R. FOR 08.01.2018 AS IS EVIDENT FROM THE LETT ERS AS PER ANNEXURE - A & B AND THE CONTENTS GIVEN IN THE LETT ER AS PER ANNEXURE - C, THE ORDER PASSED BY THE CIT(A)-III ON 03.01.2018 DOES NOT PROVIDE JUSTICE TO THE ASSESSEE APPELLANT AND THEREFORE, THE APPEAL SO DISMISSED BY THE CIT-APPEAL IN THE INTERE ST OF NATURAL JUSTICE IS PRAYED BE RESTORED TO THE FILE OF CIT-AP PEAL-III FOR ADJUDICATION. 2. GROUND OF APPEAL AS TO ADDITIONS MADE BY THE ASS ESSING OFFICER OF RS. 16,70,445/- BY INVOKING THE PROVISIO NS OF SECTION 40(A)(IA) OF ACT. THE CIT(A)-III, JAIPUR HAVE NOT DECIDED THE ISSUE S INCE THE ORDER WAS PASSED FOR NON-ATTENDANCE OF THE HEARINGS AND A CCORDINGLY GROUNDS OF APPEAL BEFORE THE CIT-APPEAL HAVE REMAINED UN-AD JUDICATED. IT IS PRAYED BEFORE THE BENCH THAT THE ISSUE INVOLV ED IS OF HEAVY ADDITION OF RS.16,70,445/- AGAINST THE DECLARED INC OME OF THE ASSESSEE IN THE RETURN OF RS.5,10,120/- , CAUSING A GREAT HA RDSHIP TO THE ASSESSEE WHO IS LOCATED AT A SMALL TOWN OF NIWAI (TONK DIST. ) HAVING A SMALL BUSINESS OF SALE OF SIM CARDS AND ACTIVATION OF SIM CARDS BEING USED IN THE MOBILE PHONES. ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 6 IT IS THEREFORE, HUMBLY PRAYED BEFORE THE BENCH THA T THE APPEAL AGAINST THE ORDER OF THE ASSESSING OFFICER INVOLVIN G HEAVY ADDITIONS ON THE TECHNICAL GROUND WHERE THE PROVISIONS OF SEC TION 40A(IA) ARE BEING APPLICABLE OR NOT IN THE CASE OF THE ASSESSEE WHEN THE TDS ON THE AMOUNT SO PAID WAS DEDUCTED BY THE PRINCIPAL CO MPANY SISTEMA SHYAM TELESERVICES LTD. AND THE ISSUE NOT ADJUDICAT ED BY THE CIT(A)-III, JAIPUR. THE APPEAL DISMISSED BY THE LD. CIT(A)-III, JAIPUR BE ORDERED TO BE RESTORED BACK TO THE FILE O F THE LD. CIT(A)- III, JAIPUR FOR ADJUDICATION. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE DO NOT GO INTO MERITS OF TH E CASE, HOWEVER, THE BENCH NOTED THAT THE ASSESSEE SHOULD BE GIVEN CHANC E TO CONTEST THE CASE BEFORE THE LD. CIT(A) AS THE ASSESSEE HAD NOT RECEIVED THE NOTICE FOR HEARING OF THE APPEAL BEFORE THE LD. CIT(A) ON 02-01-2018. THEREFORE, IN THE INTEREST OF EQUITY AND JUSTICE, T HE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE LD. CIT(A) TO DECIDE IT AFRESH TAKING INTO CONSIDERATION THE GROUNDS RAISED IN FOR M NO. 35. THE GROUND NO. 2 OF THE ASSESSEE (SUPRA) IS NOT ADJUDIC ATED UPON AS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.220/JP/2018 SHRI RAVI RAMNANI VS ITO, WARD- TONK, TONK 7 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 -06-2018 . SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 /06/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAVI RAMNANI, TONK 2. IZR;FKHZ@ THE RESPONDENT- THE ITO,WARD- TONK, TONK 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.220 /JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR