Sunita Premkumar Luthra, Nashik V. Dy. CIT Cen Cir-I Nashik, Nashik

ITA 238/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66914 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Opportunity of being heard
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 238/PN/2012 (ASSESSMENT YEAR: 2006-07) SUNITA PREMKUMAR LUTHRA RAJVILLA, OPP : KEKAN HOSPITAL, GANGAPUR ROAD, LOKMANYA NAGAR NASHIK - 02 PAN : AAEPL8602K . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1, NASHIK . RESPONDENT APPELLANT BY : NONE RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 09-05-2013 DATE OF PRONOUNCEMENT : 09-05-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATE D 12.12.2011 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 08.03.2010 PAS SED BY THE ASSESSING OFFICER, UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961(IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL, THE SOLITARY GROUND OF APPEAL RA ISED BY THE ASSESSEE READS AS UNDER :- ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TAX (APP EALS)-I, NASHIK IS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE GROUND THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL PARTICULARLY WHEN THE APPELLANT HAS FILED WR ITTEN SUBMISSION. ITA NO. 238/PN/2012 SUNITA PREMKUMAR LUTHRA A.Y. 2006-07 THE APPEAL MAY PLEASE BE SET ASIDE TO THE FILE OF T HE CIT(A)-I, NASHIK. 3. IN THIS CASE, THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT ON 31.12.2 008 WHEREIN THE TOTAL INCOME WAS ASSESSED AT RS. 58,36,705/- AS AGA INST THE RETURNED INCOME OF RS. 3,27,630/-. SUBSEQUENTLY VID E ORDER DATED 08.03.2010, ASSESSEE HAS BEEN GUILTY OF CONCEALMENT OF INCOME AND PENALTY EQUIVALENT TO 100% OF THE TAX SOUGHT TO BE EVADED, HAS BEEN LEVIED, WHICH AMOUNTED TO RS. 12,36,240/-. THE ASSE SSEE CHALLENGED THE LEVY OF PENALTY IN APPEAL BEFORE THE CIT(A). TH E CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING T HAT THE ASSESSEE DID NOT APPEAR IN RESPONSE TO VARIOUS NOTI CES FOR HEARING ISSUED AND ACCORDINGLY IT WAS INFERRED THAT THE APP ELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL. THE CIT(A) HA S DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION, AGA INST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. AT THE TIME OF HEARING, A WRITTEN SUBMISSION HAS BEEN PUTFORTH BY THE ASSESSEE STATING THAT THE APPELLANT WAS INTE RESTED IN PROSECUTING THE APPEAL BEFORE THE CIT(A) INASMUCH A S TWO WRITTEN SUBMISSIONS WERE FILED AND THE SAME HAVE NOT BEEN C ONSIDERED BY THE CIT(A) WHILE DISPOSING OF ASSESSEES APPEAL. IT IS FURTHER SUBMITTED THAT THE APPEAL OF THE ASSESSEE BE RESTOR ED BACK TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION ON MERITS . ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEARING F OR THE REVENUE SUBMITTED THAT THE CIT(A) HAS NOTED THAT ASSESSEE D ID NOT RESPOND TO THE VARIOUS NOTICES FOR HEARING ISSUED AND IN TH IS LIGHT THE APPEAL OF THE ASSESSEE HAS BEEN JUSTIFIABLY DISMISSED FOR WANT OF PROSECUTION. ITA NO. 238/PN/2012 SUNITA PREMKUMAR LUTHRA A.Y. 2006-07 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN THE PRESENT CASE, WE FIND THAT THE IMPUGNED ORDER OF TH E CIT(A) IS VIOLATIVE OF SECTION 250(6) OF THE ACT AND IS ACCOR DINGLY UNSUSTAINABLE. SECTION 250 OF THE ACT PRESCRIBES TH E PROCEDURE FOR DISPOSING OF APPEALS FILED BEFORE THE COMMISSIONER (APPEALS). IN TERMS OF SUB-SECTION (6) OF SECTION 250 OF THE ACT, IT IS PRESCRIBED THAT THE ORDER OF THE COMMISSIONER (APPEALS) SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECIS ION THEREON AND THE REASON FOR DECISION. IT IS FOUND THAT THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) IS CONSPICUOUSLY SILENT WITH REGARD TO THE POINTS FOR DETERMINATION RAISED BY THE ASSESSEE BEFORE HIM, AND THE DECISION THEREON. OSTENSIBLY, THE ASSESSEE HAD CHALLENGED THE LEVY OF PENALTY MADE BY THE ASSESSING OFFICER AS PE R THE MEMO OF APPEAL FILED BEFORE THE CIT(A), WHICH WAS ALSO ACCO MPANIED BY THE STATEMENT OF FACTS. THE IMPUGNED ORDER OF THE CIT(A ) DOES NOT DEAL WITH THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE O N THEIR MERITS, WHICH IS CONTRARY TO THE MANNER OF DISPOSAL OF APPE AL PRESCRIBED IN SECTION 250(6) OF THE ACT. FOR THE AFORESAID REASON , WE THEREFORE, FIND THAT THE IMPUGNED ORDER OF THE CIT(A) IS UNSUS TAINABLE AND ACCORDINGLY SET ASIDE. THE MATTER IS REMITTED BACK TO THE FILE OF THE CIT(A) TO BE ADJUDICATED IN ACCORDANCE WITH LAW AFT ER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS ALLOW ED AS ABOVE. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T AT THE CONCLUSION OF THE HEARING ON 09 TH MAY, 2013 IN THE PRESENCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 09 TH MAY, 2013 ITA NO. 238/PN/2012 SUNITA PREMKUMAR LUTHRA A.Y. 2006-07 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-1, NASHIK; 4) THE CIT-1, NASHIK; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE