Kailash Nath Pandey, Kanpur V. Income Tax Officer-1(2), Kanpur

ITA 234/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4382 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.234/LKW/2016 ASSESSMENT YEAR 2006-07 INCOME TAX OFFICER, KANPUR VS KAILASH NATH PANDEY, 68/150, LOKMAN MONAL, KANPUR-208001 PAN ACZPP 6466 A (RESPONDENT) (APPELLANT) SHRI DINESH SHUKLA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 11/07/2016 DATE OF HEARING 14/07/2016 DATE OF PRONOUNCEMENT O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-I, KANPUR, INTER ALIA ON FOLLOWING GROUNDS:- '1. THE CJT(A) HAS PASSED THE ORDER AGAINST THE FACT AND LAW ALSO WITHOUT GIVING EFFECT TO THE GROUNDS OF APPEAL RAISED, THE ORDER FOR A/Y 2006-07 WAS PASSED U/S 144 AS THE ASSESSEE COULD NOT GET THE COPY OF THE ACCOUNT STAT EMENT FROM THE BANK FOR THE CORRESPONDING PREVIOUS YEAR E NDING 2005-06, DESPITE OF REPEATED REQUEST AND UNTIRING E FFORTS, THEREBY AN AD-HOC ADDITION OF INCOME WAS MADE. THE SAME COULD ALSO NOT BE PRODUCED BEFORE THE CJT(A)F THE SAID FAILURE TO PROVE TO CREDITS IN THE BANK ACCOUN T RESULTED FROM NOT BEING ABLE TO GET THE COPY OF ACC OUNT STATEMENT FROM THE BANK DESPITE OF BEST EFFORTS BY THE ASSESSEE. 2. THE ITO HAS TAKEN THE BANK CLEARING CREDIT EN TRIES AS INCOME WITHOUT MAKING ANY ENQUIRY AT HIS LEVEL OR G IVING AN OPPORTUNITY TO JUSTIFY IT. 3. THE ITO HAS TAKEN CASH DEPOSITED IN BANK AS INCOME WHILE ADDED THE INCOME SHOWN IN RETURN SEPARATELY. 2 4. THAT WITHOUT PREJUDICE TO THE AFORESAID THE ORDER OF THE ASSESSING OFFICER BE SET SIDE; AND BE DIRECTED TO P ASS A FRESH ORDER AFTER GIVING REASONABLE OPPORTUNITY TO EXPLAIN AND GIVE EVIDENCE FOR THE SAME.' 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT CIT(A) HAS NOT DISPO SED OF THE APPEAL ON MERIT BUT DISMISSED THE APPEAL IN LIMINE, WHEREAS T HE CIT(A) WAS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF THE ASSES SEE DID NOT APPEAR. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. C IT(A), I FIND THAT CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE AND HAS RECORDED THAT ON VARIOUS DATES ASSESSEE APPEARED AN D SOUGHT ADJOURNMENT. THOUGH CIT(A) HAS WRITTEN FEW LINES WI TH RESPECT TO ISSUE ON MERIT BUT ITS PERUSAL DOES NOT APPEAR TO ME THAT HE APPLIED HIS MIND TO THE FACTS ON MERIT. I, THEREFORE, SET ASIDE THE ORD ER OF CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION TO READJU DICATE THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- (S.K. YADAV ) JUDICIAL MEMBER DATED: 14/07/2016 AKS 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