Rameshwar Rohitlal Mishra, Jalgaon V. ITO,Wd.-1(1), Jalgaon

ITA 237/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49927 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 11-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH SR
• Keywords: Reasonable cause
• Section: 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBE R ITA NO. 237/PN/201 0 (ASSESSMENT YEAR: 2002-03) SHRI RAMESHWAR R.MISHRA, SAHUNAGAR, JALGAON. .. APPELLANT PAN ANEPM2268H V. INCOME TAX OFFICER, WARD 1(1), JALGAON. .. RESPONDENT APPELLANT BY: SH RI SUNIL GANOO, CA RESPONDENT BY: SHRI SANJAY SINGH SR AR ORDER PER D.KARUNAKARA RAO, A.M .: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) II, NASHIK DAT ED 22-7-2008 FOR THE ASSESSMENT YEAR 2002-03. 2. ASSESSEE RAISED THE FOLLOWING GROUNDS IN HIS APPEAL. 1. IN THE ABSENCE OF CONDITIONS PRECEDENT FOR ISSUA NCE OF NOTICE U/S 148 OF THE I.T.ACT, 1961, THE IMPUGNED ASSESSMENT ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS PATENTLY ILLEGAL, BAD IN LAW, NULL AND VOID AB INITIO AND BEING WITHOUT JURISDICTION THE SAME MAY PLEASE BE ANNULLED. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, IT MAY PLEASE BE HELD THAT DUE TO ILLNESS OF THE APPELLANT, HE WA S PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFO RE THE LEARNED ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS AND CONSEQUENTLY THE EX PARTE ASSESSMENT ORDER PASSED BY THE LEARNED ASS ESSING OFFICER MAY PLEASE BE VACATED AND THE MATTER MAY PLEASE BE DECI DED ON MERITS. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, IT MAY PLEASE BE HELD THAT DUE TO ILLNESS OF THE APPELLANT, HE WA S PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFO RE THE LEARNED CT(A0 DURING APPELLATE PROCEEDINGS AND CONSEQUENTLY THE IMPUGNED APPELLATE ORDER PASSED BY THE LEARNED CIT(A) MAY PL EASE BE VACATED AND THE MATTER MAY PLEASE BE DECIDED ON MERITS. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, IT MAY PLEASE BEHELD THAT THE ALLEGED SAND EXTRACTION BUSINESS WA S CARRIED ON DURING THE RELEVANT PREVIOUS YEAR BY THE AOP NAMED AND STY LED AS M/S RAMESHWAR ROHITLAL MISHRA AND OTHERS AND CONSEQUENT LY THE INCOME FROM THE SAID BUSINESS AS ASSESSED BY THE LEARNED A SSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A0 IN THE HANDS OF THE APPELLANT IN HIS INDIVIDUAL CAPACITY BE DELETED. ITA NO 237/PN/10 SHRI RAMESHWAR R. MISHRA 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, IT MAY PLEASE BE HELD THAT AN AMOUNT OF RS.34,49,960 DEPOSITED BY THE APPELLANT ASSESSEE IN THE OFFICE OF TAHASILDAR AALNER DURING THE RELEVANT PREVIOUS EAR AS ROYALTY FOR EXTRACTION OF SAND, WAS EQUALLY CONTRIBUTED BY ALL THE MEMBERS OF THE AOP NAMED AND STYLED AS M/S RAMESHWA R ROHITLAL MISHRA AND OTHERS AND CONSEQUENTLY THE ADDITION OF SAID AMOUNT MADE BY THE LEARNED ASSESSING OFFICER U/S 69 OF THE I.T. ACT, 1961 IN THE HANDS OF THE APPELLANT ASSESSEE MAY PLEASE BE DELETED. 3. DURING THE PROCEEDINGS BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THE FACT THAT THE ASSESSEE FI LED THE PRESENT APPEAL WITH THE DELAY OF 469 DAYS. AS PER LD COUNSEL, WHO RELI ED ON AN AFFIDAVIT OF THE ASSESSEE FILED BEFORE US, MENTIONED THAT THE REASON FOR SUCH A DELAY IS TO THE SUFFERING OF THE ASSESSEE OWING TO METAL ILLNESS IE SCHIZOPHRENIA COUPLED WITH DEPRESSION. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE FILED A MEDICAL CERTIFICATE FROM THE CONCERNED DOCTOR CERTIFYING TH E ABOVE FACT. ASSESSEE SUBMITTED HIMSELF BEFORE US DURING THE HEARING TOO. ON HEARING BOTH THE PARTIES, WE FIND THE EXISTENCE OF SUFFICIENT AND BONA FIDE REASON FOR THE SAID DELAY IN FILING THE PRESENT APPEAL BEFORE US. ACCO RDINGLY, WE HAVE DECIDED TO CONDONE THE DELAY AND PROCEED TO HEAR THE APPEAL. 4. FURTHER, LD COUNSEL FOR THE ASSESSEE MENTIONED T HAT THE TRIBUNAL CAN ADJUDICATE THE ISSUE WITHOUT SETTING ASIDE TO THE F ILES OF THE REVENUE AUTHORITIES. REFERRING TO THE IMPUGNED ORDER OF THE CIT(A), SRI GANOO, THE LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE STATING THAT THE ASSESSEE WAS NOT INTE RESTED IN PURSUING THE APPEAL AND HOW HE DID NOT GIVE ADJUDICATION ON THE MERIT OF THE GROUNDS RAISED IN THE APPEAL BEFORE HIM. FURTHER, REFERRIN G TO THE SMALL PAPER BOOK FILED BEFORE US, PARTICULARLY PAGE 7 OF THE PAPER B OOK I.E. AN ORDER SHEET FROM THE FIE OF THE ASSESSING OFFICER, THE LD COUNSEL AR GUED STATING THAT THE NOTICE U/S 148 WAS ISSUED AND SERVED ON THE ASSESSEE ON 23 -3-2007 I.E. PRIOR TO THE RECORDING OF THE REASONS FOR REASSESSMENT. AS PER S RI GANOO, THE ORDER OF THE AO SHOULD BE HELD IN VALID IN SUCH CIRCUMSTANCES. 5. WE HAVE PERUSED THE ORDERS OF THE REVENUE AND FI ND THAT THE SAME WERE MADE IN AN EX PARTE MANNER AND THE ASSESSING OFFICER DID NOT HAVE THE BENEFIT OF THE PRESENCE OF THE ASSESSEE. SO IS THE CASE WITH CIT(A). THE REASONS ARE OBVIOUS THAT THE ASSESSEE WAS NOT AVAIL ABLE DUE TO HIS PROBLEMS RELATING TO ILLNESS. WE ALSO FIND THAT THE CIT(A) HAS NOT ADJUDICATED THE ISSUES IN ACCORDANCE WITH THE PROVISIONS OF SEC. 250(6) OF THE INCOME TAX ACT, 1961. CONSIDERING THE SAME, WE ARE OF THE OPINION THAT TH E MATTER SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. THE AS SESSING OFFICER IS DIRECTED TO ADJUDICATE BOTH LEGAL AS WELL AS MERIT RELATED ISSU ES AFTER AFFORDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS EE HAS ALSO MADE A ITA NO 237/PN/10 SHRI RAMESHWAR R. MISHRA STATEMENT AT THE BAR THAT HE SHALL CO OPERATE WITH THE DEPARTMENT IN MAKING THE ASSESSMENT. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AREA ALLOWED FOR STATISTICAL PURPOSES. ON THE OTHER HAND, LD DR FOR THE REVENUE MENTIONED THAT THE AO AND THE CIT(A) HAD TO PASS RESPECTIVE ORDERS IN AN EX-PARTE MANNER DUE TO UNAVAILABILITY OF THE ASSESSEE AND N ON COOPERATION OF THE ASSESSEE. THERE IS NO WAY THE OF FICERS COULD HAVE PASSED THE SPEAKING ORDERS ON THE MERITS OF THE ISSUES RAI SED IN THE GROUNDS. DURING THE HEARING PROCEEDINGS, WE HAVE INTIMATED THE PROV ISIONS OF SECTION 250(6) OF THE ACT AND OBSERVED THE MANNER IN WHICH THE CIT (A) PASSED HIS ORDER. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE. IT IS A FACT THE BOTH AO AND THE CIT(A) PASSED THEIR ORDE RS WITHOUT ANY ASSISTANCE FROM THE ASSESSEES SIDE. IT IS ALSO A FACT THAT TH E CIT(A) DISMISSED APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE I SSUES RAISED IN THE GROUNDS RAISED IN FORM NO 35. CIT (A) DISMISSED THE APPEAL STATING THAT THE ASSESSEE IS NOT INTERESTED IN PERUSING THE APPEAL. EFFECTIV ELY, THE CIT (A) DISMISSED THE APPEAL FOR NON-APPEARANCE OF THE ASSESSEE. IT IS R ELEVANT TO MENTION THAT AS PER THE DECISION AHMEDABAD BENCH OF THE ITAT IN THE CASE OF GUJARAT THEMIS BIOSYN LTD VS JCIT (2000) 74 ITD 339, THE FIRST APP ELLATE AUTHORITY HAS TO DECIDE THE APPEAL ON MERITS AND HE HAS NO POWER TO DISMISS THE APPEAL FOR NON-APPEARANCE OF THE ASSESSEE. IN THIS REGAR D, WE HAVE PERUSED SUB-SECTION (6) OF THE SECTION 250 AND THE SAME REA DS AS UNDER:- (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATED THE POINTS FOR DETERMINATI ON, THE DECISION THEREON AND THE REASON FOR THE DECISION. 7. FROM THE ABOVE IMPORTED PROVISIONS, IT IS EVIDEN T THAT THE CIT (A) WILL NOT DISPOSE OF THE APPEAL SUMMARILY WITHOUT STATING THE POINT OF DETERMINATION AND THE DECISION THEREON GIVING REASONS FOR DECISIO N. HAVING REGARD TO THE PLAIN LANGUAGE OF SECTION 250(6) OF THE ACT, AS EXP LAINED BY THE ITAT, AHMEDABAD BENCH CITED (SUPRA), WE ARE OF THE VIEW T HAT THE LEARNED CIT (A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL WITHOUT GIVING REASONS FOR DECISION, MORE SO EVEN THE ISSUE INVOLVED IS THE PENALTIES, W HICH HAS MANY IMPLICATIONS. WE THEREFORE SET ASIDE THE ORDER OF THE LEARNED CIT (A) AND DIRECT HIM TO DISPOSE OF THE APPEAL ON MERITS BY PASSING A SPEAKI NG ORDER AFTER HEARING THE ASSESSEE. FURTHER, WE DIRECT THE CIT(A) TO ADJUDICA TE ON THE LEGAL ISSUE RAISED BEFORE US RELATING TO THE ISSUE OF NOTICE U/S 148 O F THE ACT PRIOR TO THE RECORDING OF THE REASONS. ACCORDINGLY, GROUNDS ARE SET ASIDE . ITA NO 237/PN/10 SHRI RAMESHWAR R. MISHRA 8. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13-7-2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) (D.KARUNAKARA RA O) JUDICIAL MEMBER ACCOUNTA NT MEMBER PUNE, DATED: 13-7-2011 COPY TO:- 1) THE ASSESSEE 2) THE ITO WARD 1(1) AURANGABAD 3) THE CIT (A)II, NASIK 4) THE CIT AURANGABAD 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T .A.T., PUNE. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., PUNE