ACIT, Cuttack V. Acharna Adhikari, Mayurbhanj

ITA 229/CTK/2012

• Counselvise Citation: 22922114 RSA 2012
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 30-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 229/CTK/2012 / ASSESSMENT YEAR 2008 - 09 ACIT, CIRCLE 2(2), CUTTACK. - - - VERSUS - SMT. ARCHANA ADHIKARI, C/O. MADHUSUDAN ADHIKARI, WEARD 4, LAL BAZAR, MAYUIRBHANJ, PAN: AEM PA 6273 K ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI N.K.NEB, DR / FOR THE RESPONDENT: NONE / DATE OF HEARING: 30.10.2012 / DATE OF PRONOUNCEMENT: 02.11.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THE APPEAL BY THE REVENUE RAISES THE SOLITARY GROUND WHICH READS AS UNDER : IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. FIRST APPELLATE AUTHORITY WAS NOT JUSTIFIED IN DIRECTING TO RESTRICT THE DISALLOWANCE FROM OUT OF EXPENDITURE TO 3% INSTEAD OF 50% MADE BY THE AC IN THE IMPUGNED ASSESSMENT ORDER PASSED U/S.144 OF THE I.T.ACT WITHOUT ANY BASIS OR CALLING FOR ANY REMAND REPORT FROM THE AO - WHEN THE ASSESSEE HAD FAI LED TO SUBSTANTIATE THE SAME BEFORE THE AC IN SPITE OF ADEQUATE OPPORTUNITIES OFFERED TO HIM IN TERMS OF STATUTORY NOTICES U/S.142(1) AT THE TIME OF THE ASSESSMENT PROCEEDINGS . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. NO PETITION FOR ADJOURNMENT SEEKI NG ADJOURNMENT OF THE CASE WAS ALSO FILED OR MOVED. THEREFORE, WE PROCEEDED TO DISPOSE OF THE APPEAL EXPARTE QUA ASSESSEE AFTER HEARING THE LEARNED DR AND GOING THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. 2 3. THE LEARNED DR SUB MITTED THAT AS PER GROUND RAISED BY THE ASSESSEE, IT IS VERY CLEAR THAT THE LEARNED CIT(A) BEFORE WHOM NOBODY HAD APPEARED TRIED TO GRANT RELIEF TO THE ASSESSEE BY REDUCING THE DISALLOWANCE FROM 50% TO 3% WHETHER WAS A TYPOGRAPHICAL ERROR OR A CALCULATED RELIEF GIVEN TO THE ASSESSEE HAS NOT BEEN BROUGHT OUT IN THE ORDER AS MAY BE PERUSED. HE ALSO POINTED OUT THAT THE ORDER APPEALED AGAINST BEFORE THE CIT(A) WAS ALSO U/S.144 WHICH CLEARLY GIVES ROOM FOR DOUBT THAT THE AS SESSEE DID NOT ACTUALLY DESERVE SUBSTANTIAL RELIEF FROM 5 0% TO 3%. HE PRAYED THAT IN ABSENCE OF THE ASSESSEE OR HIS COUNSEL WHO HAVE BEEN NOTIFIED REPEATEDLY THROUGH THE ASSESSING OFFICER AS WELL, THE ISSUE BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR CONSIDERATION OF THE ISSUE AFRESH. 4. WE HAVE PERUSED TH E ORDERS OF THE AUTHORITIES BELOW AND HAVE VERIFIED THE MATERIAL ON THE BASIS OF WHICH THE LEARNED CIT(A) APPEARS TO HAVE GRANTED RELIEF TO THE ASSESSEE BY REDUCING THE DISALLOWANCE OF EXPENDITURES CLAIMED IN THE P & L ACCOUNT FROM 50% TO 3% ONLY. IT WAS N OT THE CASE OF THE LEARNED CIT(A) TO INDICATE THAT THE ASSESSEE WAS EARNING MORE THAN 3% NET PROFIT WHICH WAS THE CASE BEFORE THE ASSESSING OFFICER WHO CHOOSE TO PASS THE ASSESSMENT ORDER U/S.144 WHEN INSPITE OF SEVERAL OPPORTUNITIES GRANTED THE ASSESSING OFFICER WAS CONSTRAINED TO PASS THE ASSESSMENT ORDER U/S.144. HA ING FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS NOT THE CASE OF THE LEARNED CIT(A) TO CONSIDER MAJOR RELIEF WHICH WOULD RESULT IN DISPUTING THE VERY NET PROFIT RETURNED BY THE ASSESSEE BEING MORE THAN 3%. IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO CONSIDER THE CONTENTION OF THE LEARNED DR APPROPRIATE THAT THE ISSUE BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR CONSIDERATION OF THE APPEAL AFRESH AFTER AFFORDING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 02.11.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPEL LANT : 2 / THE RESPONDENT: 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 30.10.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.10.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING M EMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 02.11.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.