Dr. RAKESH AGARWAL, Agra V. I.T.O.-(2) 4, Agra

ITA 231/AGR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8783 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHINAV BANSAL
• Keywords: Opportunity of cross examination; Assessment record
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH: AGRA BEFORE S HRI A. D. JAIN, JUDICIAL MEMBER I.T.A NO . 231 /AGRA/201 6 (ASSESSMENT YEAR - 200 0 - 0 1 ) A SSESSEE BY SHRI ABHINAV BANSAL , REVENUE BY SHRI WASEEM ARSHAD, SR. DR. ORDER THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 200 0 - 0 1 , RAISING THE FOLLOWING GROUNDS: 1. BECAUSE THE LD. CIT(A) ERRED IN HOLDING THAT THE A O. AFFORDED A SPECIFIC OPPORTUNITY TO THE ASSESSEE FOR CROSS EXAMINATION ON THE DIRECTIONS BY THE HONBLE ITAT ON 22.02.2013 AND WHICH WAS NOT BEEN AVAILED BY THE ASSESSEE. 2. BECAUSE THE HON'BLE ITAT DIRECTED THE AO VIDE ORDER DATED 17TH JUNE 2011 TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE DIRECTOR OF M/S G.K. CONSULTANTS (P) LIMITED. HOWEVER, THE AO ISSUED NOTICE DR. RAKESH AGARWAL, 1 - 157, DELHI GATE, AGRA PAN NO. A DRPA 0353 N (ASSESSEE) V S .. ITO (2)4, AGRA (R EVENUE ) DATE OF HEARING 31 . 0 8 .201 7 DATE OF PRONOUNCEMENT 24 . 10 .201 7 I.T.A NO. 231 /AGRA/201 6 2 TO M/S G.K. CONSULTANTS (P) LI MITED ONLY ON 14 - 02 - 201 3 TO APPEAR FOR CROSS EXAMINATION. 3. BECAUSE THE AO DID NOT HAVE ANY INTENTIONS TO COMPLY WITH THE ORDERS OF THE HON'BLE ITAT. 4. BECAUSE THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT IT WAS MATTER OF RECORD THAT ON 20.02.2013 I.E . THE DATE FIXED FOR THE CROSS EXAMINATION OF THE DIRECTOR OF M/S G.K. CONSULTANTS (P) LIMITED, A DHARNA WAS STAGED BY THE I.T. EMPLOYEES UNION DUE TO WHICH IN SPITE OF BEST EFFORTS, THE ASSESSEE AND HIS COUNSEL COULD NOT ENTER THE I.T. OFFICE TO APPEAR B EFORE THE ITO TO CROSS EXAMINE THE DIRECTOR OF M/S G.K. CONSULTANTS (P) LIMITED IN CASE HE WAS PRESENT BEFORE THE ASSESSING OFFICER FOR CROSS EXAMINATION. 5. BECAUSE THE CIT(A) ERRED IN NOT ACCEPTING THE CONTENTION OF THE APPELLANT HOLDING THAT THE STAND OF THE A.O., THAT OPPORTUNITY TO CROSS EXAMINE DIRECTOR OF M/S G.K. CONSULTANTS (P) LIMITED WAS NOT AVAILED BY THE ASSESSEE IS DEVOID OF MERIT, AS ALL THE FACTS AND CIRCUMSTANCES REGARDING THE STRIKE OF I.T. EMPLOYEES UNION ON 22.02.2013 ETC. WERE EXPLAIN ED BEFORE HER. 6. BECAUSE IT IS CLEAR FROM A BARE PERUSAL OF THE ORDER OF THE LD. CIT(A) THAT SHE DID NOT EVEN GO THROUGH THE ASSESSMENT RECORD TO ASCERTAIN WHETHER ON THE DATE FIXED I.E. 20.02.2013, M/S G.K. CONSULTANTS (P) LIMITED WAS REPRESENTED AT ALL BY ANY PERSON FOR CROSS EXAMINATION BY THE APPELLANT. 2. AS PER THE RECORD , THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 26.12.2007, U/S 144/147 OF THE INCOME TAX ACT, 1961, AT THE TOTAL INCOME OF RS.7,66,350/ - . TH I S, INCLUDED AN ADDITION OF RS.1,48,780/ - RELATING TO TRANSACTIONS OF PURCHASE AND SALE OF SHARES I.T.A NO. 271 /AGRA/201 3 3 OF M/S G.K. CONSULTANTS LTD. THE TRIBUNAL, VIDE ORDER DATED 17.06.2011, SET ASIDE THE ISSUE TO THE ASSESSING OFFICER, TO DECIDE IT AFRESH ON AFFORDING OPPORTUN ITY TO THE ASSESSEE TO CROSS EXAMINE THE PERSON ON WHOSE STATEMENT THE ADDITION HAD BEEN MADE. IN THE ASSESSMENT ORDER DATED 12.032013, THE AO HAS OBSERVED THAT SUMMONS U/S 131 OF THE ACT WERE ISSUED ON 14.02.2013 TO THE MANAGING DIRECTOR, M/S G.K. CONSU LTANTS LTD., 302, G.K. HOUSE, 187 - A , SANT NAGAR, EAST KAILASH, NEW DELHI AND TO THE ASSESSEE, FOR CROSS EXAMINATION ON 20.02.2013, BUT NOBODY ATTENDED FOR THE CROSS EXAMINATION, NOR ANY COMMUNICATION IN THIS REGARD WAS RECEIVED. THE ASSESSING OFFICER PASSE D THE ASSESSMENT ORDER ASSESSING THE TOTAL INCOME OF ASSESSEE AT RS.5,81,260/ - . THE LD. CIT(A) , BY VIRTUE OF THE IMPUGNED ORDER, DISMISSED THE ASSESSEES APPEAL, OBSERVING THAT THE ASSESSEE DID NOT AVAIL OF THE OPPORTUNITY PROVIDED FOR CROSS EXAMINATION BE FORE THE ASSESSING OFFICER AND EVEN DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE CO U LD NOT GIVE ANY EXPLANATION AS TO WHY IT WAS SO. I.T.A NO. 231 /AGRA/201 6 4 3. I HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. GROUNDS NO. 7 TO 9 RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) READ AS FOLLOWS: 7. BECAUSE ALTHOUGH THE ASSESSMENT PROCEEDINGS WERE STARTED AGAIN SINCE NOVEMBER 2011, NO ACTION WAS TAKEN BY THE A.O. FOR AFFORDING OPPORTUNITY FOR CROSS EXAMINATION TILL 14.02.2013 WHEN THE A.O. FIXED 20.02.201 3 ASKING THE ASSESSEE TO HE PRESENT FOR CROSS EXAMINING 'HE MANAGING DIRECTOR OF G.K. CONSULTANTS (PVT) BUT ON THE APPOINTED DAY TH INCOME TAX EMPLOYEES UNION WAS ON STRIKE AND THE ASSESSEE ALTHOUGH PRESENT AND WILLING TO PARTICIPATE IN THE PROCEEDINGS COU LD NOT ENTER THE OFFICE BUILDING DUE TO DHARNA STAGED BY THE UNION. 8. BECAUSE THE ABOVE FACT WAS INFORMED TO THE ASSESSING OFFICER AND IT WAS REQUESTED THAT IN THE EVENT OF MANAGING DIRECTOR OR ANY OTHER DIRECTOR OF G.K. CONSULTANTS (PVT) LTD. BEING PRESENT EVEN ON ANY SUBSEQUENT DATE, THE ASSESSEE WOULD BE AVAILABLE TO PARTICIPATE IN THE PROCEEDINGS OF CROSS EXAMINATION. 9. BECAUSE THE MANAGING DIRECTOR OF G .K. CONSULTANTS NEVER ATTENDED THE OFFICE OF THE ASSESSING OFFICER ON THE SAID DATE FOR CROSS EXAMINATION, AS IS CLEAR FROM THE ASSESSMENT ORDER. 4. THUS, CLEARLY, THE ASSESSEE SPECIFICALLY STATED BEFORE THE LD. CIT(A) THAT ON 20.02.2013, THE DAT E FIXED FOR CROSS EXAMINATION, THE INCOME TAX EMPLOYEES UNION WAS ON STRIKE AND THOUGH THE ASSESSEE WAS PRESENT IN THE OFFICE OF THE ASSESSING OFFICER, WILLING TO PARTICIPATE IN THE CROSS EXAMINATION PROCEEDINGS , HE COULD NOT ENTER I.T.A NO. 271 /AGRA/201 3 5 THE OFFICE BUILDING DUE TO DHARNA STAGED BY THE UNION; THAT THIS FACT WAS DULY INFORMED BY THE ASSESSEE TO THE ASSESSING OFFICER AND IT WAS REQUESTED THAT THE CROSS EXAMINATION PROCEEDINGS WOULD BE ATTENDED BY THE ASSESSEE ON ANY SUBSEQUENT DATE; AND THAT THE MANAGING DIRECTOR OF M/S G.K. CONSULTANTS LTD. NEVER ATTENDED THE OFFICE OF THE ASSESSING OFFICER ON THE SAID DATE FOR CROSS EXAMINATION. 5. THE L D. CIT(A), HOWEVER, HAS NOT DEALT WITH THESE SPECIFIC GROUNDS RAISED BY THE ASSESSEE . I T REMA INS A FACT PATENT ON RECORD THAT THE ASSESSING OFFICER ISSUED SUMMONS U/S 131(1) OF THE ACT TO BOTH, THE ASSESSEE, AS WELL AS THE MANAGING DIRECTOR OF M/S G.K. CONSULTANTS LTD. THEREFORE, THE L D. CIT(A) H AS CLEARLY ERRED IN OBSERVING THAT IT WAS THE ASSESS EE WHO DID NOT AVAIL OF THE OPPORTUNITY OF CROSS EXAMINATION PROVIDED TO HIM BY THE ASSESSING OFFICER AND THAT IN THE A PPELLATE PROCEEDING BEFORE THE L D. CIT(A), THE ASSESSEE COULD NOT GIVE ANY EXPLANATION AS TO WHY SUCH OPPORTUNITY WAS NOT AVAILED BY HIM. I.T.A NO. 231 /AGRA/201 6 6 6. IN THE ABOVE FACTS AND CIRCUMSTANCES, IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REMIT THIS MATTER TO THE FILE OF THE ASSESSING OFFICER, TO BE DECIDE AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEA RING, INCLUDING THE OPPORTUNITY OF CROSS EXAMINING THE MANAGING DIRECTOR OF M/S G.K. CONSULTANTS LTD. , ON WHOSE STATEMENT, THE ADDITION OF RS.1,54,585/ - WAS MADE . THE ASSESSEE, NO DOUBT SHALL COOPERATE IN THE FRESH PROCEEDING B E FORE THE ASSESSING OFFICER. ORDERED ACCORDINGLY. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 24 / 10 / 2017 . SD/ - (A.D. JAIN) JUDICIAL MEMBER DATED 24 / 10 /201 7 AKS/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR I.T.A NO. 271 /AGRA/201 3 7 DATE 1. DRAFT DICTATED (DNS) 23 . 10 .2017 PS 2. DRAFT PLACED BEFORE AUTHOR 24 . 10 .2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON 24.02.2017 PS 7. FILE SENT TO THE BENCH CLERK 24.02.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.