DEEPAK S/o. NIHALCHAND GUPTA, Nagpur V. ITO, WARD- 7(1), Nagpur

ITA 246/NAG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3141 (ITAT-NAGPUR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 143(3)

Judgement Text

1 ITA NO. 246/NAG/2015 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 246 /NAG/201 5 ASSESSMENT YEAR : 200 9 - 10. DEEPAK NIHALCHAND GUPTA, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 7(1), NAGPUR. PAN AEMPG9160P (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI M.N.S. RAO RESPONDENT : SHRI NARENDRA KANE. DATE OF HEARING : 01 - 02 - 2016 DATE OF PRONOUNCEMENT : 5 TH FEBRUARY , 2016. O R D E R PER MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 18 - 09 - 2014. THE ASSESSEE HAS RAISED THE GROUNDS OF APPEAL AS UNDER : I) THAT THE APPELLANT DUE TO GENUINE AND BONAFIDE REASONS WAS UNABLE TO ATTEND AND CONCENTRATE ON THE ABOVE CASE PROCEEDINGS OF ASSESSMENT AND FIRST APPEAL OF ASSESSMENT YEAR 2009 - 2010 . II) THAT THE APPELLANT MADE THE DEPOSITS OF RS . 11 , 86 , 237/ - AND WITHDRAWALS OF RS . 6 , 79 , OOO/ - IN STANDARD CHARTERED BANK A/C NO . 80410067618 I N H I S NAME ; PLUS DEPOSITS OF RS . 12,29 , 150/ - AND WITHDRAWALS OF RS. 6 , 37 , 000 / - I N LAXM I V I LAS BANK A/C NO 049130100021387 ALSO IN HIS NAME DURING THE FINANCIAL YEAR 2 008 - 2009 . . THUS THE NET CASH DEPOSITS OF BOTH BANKS AMOUNTING TO RS . 10 , 99,387 / - ONLY . III ) THE ABOVE MADE DEPOSITS ARE THE ADVANCE PAYMENTS OF DIFFERENT PROSPECTIVE BUYERS OF SALE OF SMALL PLOTS MADE FROM LAND OWNED BY 2 ITA NO. 246/NAG/2015 DEEPAK N . GUPTA IN KAWTHA , KAMPTEE ROAD, DISTRICT NAGPUR BEARING KHASARA NO. 156, MEASURING 1 . 62 HE C TARES , COPY OF THE SALE DEED OF THE LAND IS ENCLOSED . IV) THAT THE TOTAL INCOME COMPUTED BY THE ASSESSING INCOME TAX OFFICER FOR THE ASSESSMENT YEAR 2009 - 2010 OF RS . 62,18 , 760/ - AS PER THE LEARNED INCOME TAX OFFICE R ORDER NO . D . N. GUPTA / 143(3)9 - 10 DATED 26/12/2011 PASSED BY ITO WARD 7 (1) NAGPUR, U / S 143(3) IS FALSE, ILLEGAL , AGAINST LAW AND SHOWING INJUST I CE TO THE APPELLANT. 2. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUN DS OF APPEAL, HOWEVER, KEEPING BREVITY IN MIND, THE SAME ARE NOT REPRODUCED BECAUSE THE ASSESSEE HAS PRIMARILY ARGUED GROUND NO.1 (SUPRA) WHICH IS IN RESPECT OF NON GRANTING OF OPPORTUNITY OF HEARING BY THE FIRST APPELLATE AUTHORITY. 3. BEFORE PROCEEDI NG TO DECIDE THE ISSUE RAISED, WE HAVE BEEN INFORMED BY THE REGISTRY THAT THIS APPEAL WAS BELATEDLY FILED BY 207 DAYS. IN THIS REGARD THE ASSESSEE HAS FURNISHED AN AFFIDAVIT AND STATED ON OATH THAT THE HE RECEIVED THE ORDER OF LEARNED CIT(APPEALS) ON 26 - 11 - 2014. THAT THE ASSESSEE WAS FIRED BY PISTOL ON 22 - 04 - 2015 FOR WHICH AN FIR WAS LODGED WITH THE POLICE AND HE WAS ADMITTED IN THE HOSPITAL . THAT AN OPEN HEART SURGERY OF THE ASSESSEE WAS CARRIED OUT DATED 16 - 01 - 2015. FOR THE ABOVE REASONS AND FOR OTHER DIFFICULTIES THE DELAY WAS OCCURRED. 4. AFTER CONSIDERING THE ABOVE SUBMISSIONS, WE ARE OF THE OPINION THAT THERE IS A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL. HENCE WE CONDONE THE DELAY AND ADMIT THE APPEAL. 5. THE FACTS IN BRIEF ARE T HAT AN ASSESSMENT ORDER U/S 143(3) WAS PASSED ON 26 - 12 - 2011 WHEREIN THE AO HAS GIVEN NUMBER OF OPPORTUNITIES OF HEARING TO THE ASSESSEE, HOWEVER, NOT PROPERLY COMPLIED WITH. HENCE AN ADDITION OF RS.58,92,759/ - WAS MADE WHICH PERTAINED TO CREDIT ENTRIES IN THE BANK ACCOUNTS IN THE NAME OF THE ASSESSEE. 3 ITA NO. 246/NAG/2015 6. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LEARNED CIT(APPEALS) HAS GRANTED FEW OPPORTUNITIES OF HEARING BUT IN THE ABSENCE OF ANY COMPLIANCE AFFIRMED THE ACTION OF THE AO. 7. FROM THE SIDE OF THE APPELLANT LEARNED A.R. MR. M.N.S. RAO APPEARED AND INFORMED THAT DUE TO ILL HEALTH THE ASSESSEE WAS UNABLE TO REPRESENT HIS CASE BEFORE THE AO AS WELL AS BEFORE THE CIT(APPEALS). HE HAS GIVEN AN UNDERTAKING TO US THAT IF AN ANOTHER OPP ORTUNITY BE GRANTED THEN THERE SHALL BE NO DEFAULT IN COMPLYING THE NOTICES AND THE APPEAL SHALL BE DECIDED AT AN EARLY DATE. 8. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE LEARNED D.R. HAS OBJECTED TO GRANT AN ANOTHER CHANCE TO THIS ASSESSEE BECAUSE THERE WAS DELIBERATE AVOIDANCE OF HEARING ON THE PART OF THE ASSESSEE AND HIS LEGAL REPRESENTATIVE. 9. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE SPECIALLY WHEN THE ASSESSEE HAS STATED ON OATH THAT DUE TO OPEN HEART SURGER Y AND HIS OTHER DIFFICULTY THE MATTER COULD NOT BE REPRESENTED BEFORE THE REVENUE AUTHORITIES, WE DEEM IT PROPER THAT NATURAL JUSTICE DEMANDS TO GIVE ANOTHER CHANCE TO THIS ASSESSEE SO THAT THE ISSUE OF CREDIT ENTRIES FOUND IN THE BANKS COULD BE RESOLVED A FTER APPRECIATING THE EVIDENCES, IF ANY, IN POSSESSION OF THE ASSESSEE. 10. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HEREBY DIRECT THE ASSESSEE TO EITHER PRESENT HIMSELF OR THROUGH THE AUTHORIZED REPRESENTATIVE WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL BEFORE THE LEARNED CIT(APPEALS) SUO MOTO WITHOUT WAITING FOR ANY FORMAL NOTICE OF HEARING AND TAKE ALL NECESSARY STEPS TO GET THIS APPEAL FINALIZED AT AN EARLY DATE. HOWEVER, THE REVENUE AUTHORITIES ARE AT LIBERTY TO ADOPT DUE LEGAL RECOURSES AS PRESCRIBED UNDER THE I.T. ACT. HENCE THE APPEAL IS RESTORED BACK TO THE FILE OF THE LEARNED CIT(APPEALS) AS DIRECTED ABOVE. 4 ITA NO. 246/NAG/2015 11. IN THE RESULT, SINCE THE MATTER HAS BEEN RESTORED BACK FOR DENOVO CONSIDERATION BY LEARNED CIT(A PPEALS), HENCE THIS APPEAL OF THE ASSESSEE MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF FEBRUARY , 2016. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 5 TH FEBRUARY , 2016. COPY F ORWARDED TO : 1. DEEPAK NIHALCHAND GUPTA, KAILASHPATI APARTMENT, SHOP NO. B - 19, OPPOSITE YUGANTAR SCHOOL, KAMPTEE ROAD, NAGPUR. 2. I.T.O., WARD - 7(1), NAGPUR. 3. COMMISSIONER OF INCOME - TAX - ,NAGPUR. 4. CIT(APPEALS) - I I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.