Shri Sushikumar S Deshmukh, Osmanabad V. ACIT, Nanded

ITA 2500/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2034 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2012
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Principle of natural justice; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI G.S.PANNU, ACCOUNTANT MEMBER. ITA.NO.2500/PN/2012 (ASSTT. YEAR : 2009-10) SHRI SUSHILKUMAR SUBHASH DESHMUKH, RAJESH NAGAR HIGHWAY ROAD, A/P. DHOKI, OSMANABAD. .. APPELLANT PAN: ABHPD5474F VS. ACIT, CIRCLE-3, NANDED. .. RESPONDENT AND ITA.NO.2501/PN/2012 (ASSTT. YEAR : 2009-10) SHRI SUBHASH LALASAHEB DESHMUKH, RAJESH NAGAR HIGHWAY ROAD, A/P. DHOKI, OSMANABAD. .. APPELLANT PAN: ABCPD6789Q VS. ACIT, CIRCLE-3, NANDED. .. RESPONDENT AND S.A.NO.178/PN/2012 (ARISING OUT OF ITA.NO.2500/PN/2012) (ASSTT. YEAR : 2009-10) SHRI SUSHILKUMAR SUBHASH DESHMUKH, RAJESH NAGAR HIGHWAY ROAD, A/P. DHOKI, OSMANABAD. .. APPELLANT PAN: ABHPD5474F VS. ACIT, CIRCLE-3, NANDED. .. RESPONDENT AND 2 S.A.NO.179/PN/2012 (ARISING OUT OF ITA.NO.2501/PN/2012) (ASSTT. YEAR : 2009-10) SHRI SUBHASH LALASAHEB DESHMUKH, RAJESH NAGAR HIGHWAY ROAD, A/P. DHOKI, OSMANABAD. .. APPELLANT PAN: ABCPD6789Q VS. ACIT, CIRCLE-3, NANDED. .. RESPONDENT ASSESSEE BY : SHRI M.K.KULKARNI DEPARTMENT BY : MS.ANN KAPTHUAMA DATE OF HEARING : 15.02.2013 DATE OF PRONOUNCEMENT : 25.02.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM : ASSESSEE HAS FILED THIS APPEAL ON FOLLOWING GROUND S: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) ABAD WAS NOT JUSTIFIED IN PASSING EXPARTE A PPEAL ORDER FOR NON ATTENDANCE OF THE REPRESENTATIVE OF THE APPELLA NT WITHOUT CONSIDERING THE LEGAL OBLIGATIONS CAST UPON HIM ENS HRINED IN S.250(6) OF THE ACT. EVEN EXPARTE ORDER IT MUST HA VE BEEN A SPEAKING ORDER CONSIDERING THE MERITS OF THE CASE AND LEGAL POSITION. THE ORDER DESERVES TO BE SET ASIDE TO LD . CIT(A) FOR PASSING THE APPEAL ORDER IN ACCORDANCE WITH THE PRO VISION LAW. 2. THE OTHER GROUNDS OF APPEAL RAISED BEFORE CIT(A) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE NOTICE ISSUED ON 23-08-2010 WAS NOT AT ALL ISSUED WITHIN TIME LIMIT AS PER SECTION 151 OF THE INCOME TAX ACT, 1961. HENCE, THE ASSESSMENT BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ASSESSMENT ORDER PASSED ON 30-12-2011 AND DISPATCHED IN POST ON 31-12-2011 IS BAD UNDER LAW S INCE THE SERVICE OF ORDER ON PERSON OR DISPATCH IN POST SHOULD BE ON 30-12-2011 SINCE 31-12-2011 BEING SATURDAY AND T O COMPLETE THE ASSESSMENT AND SERVICE OR DISPATCH SHO ULD BE ON OR BEFORE 30-12-2011. THEREFORE, THE ASSESSMENT BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ADDITION ON ACCOUNT OF AGRICULTURAL INCOME TO T HE 3 TUNE OF RS.80,64,450/- STATING IN PARA 5 AS 50% AND MAKING 100% ADDITION IS BAD IN LAW. HENCE, THE ADD ITION BE DELETED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ADDITION OF RS.26,82,562/- TOWARDS MANUFACT URING EXPENSES IS NOT JUSTIFIED WITHOUT COMPARING THE PRE VIOUS YEARS ACCOUNT STATEMENT AND THE SAME BE DELETED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ADDITION OF RS.74,60,500/- TOWARDS LOANS RA ISED FROM FRIENDS AND RELATIVES IS NOT JUSTIFIED AND THE SAME BE DELETED. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. A.O. WAS NOT JUSTIFIED IN PASSING EXPAR TE ASSESSMENT UNDER S.144 OF THE ACT WITHOUT PROPER SE RVICE OF SHOW-CAUSE NOTICE AS PROVIDED IN THE PROVISO TO S.1 44(1) OF THE ACT AND WITHOUT PROPERLY APPRECIATING THE AUDIT ED ACCOUNTS SUBMITTED U/S 44AB AND ALSO INFORMATION SUBMITTED ALONGWITH THE RETURN. THE ASSESSMENT BEI NG ARBITRARY AND ALSO OPPOSED TO FUNDAMENTAL PRINCIPLE S OF NATURAL JUSTICE BE ANNULLED. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE ADDITIONAL GROUND BEING PURE QUESTION OF LAW AND AL SO DO NOT REQUIRE ANY FURTHER INVESTIGATION BE ADMITTED F OR ADJUDICATION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEVY OF INTEREST U/S.234B AND 234C IS NOT JUSTI FIED AND IN THE CIRCUMSTANCES IT BE DELETED. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE C IT(A) HAS NOT PASSED A SPEAKING ORDER AND EXPARTE ORDER HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE BY APPLYING RATI O OF DELHI BENCH OF ITAT IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320. ACCORDING TO US, THE CIT(A) SHOULD HAVE PASSED SPEAKING ORDER. ACCORDINGLY, WE SET ASIDE THE ORDER IN QUESTION AND RESTORE THE MAT TER TO THE CIT(A) WITH A DIRECTION TO DECIDE THE SAME AS PER LAW AND AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 3. SIMILAR ISSUE AROSE IN THE CASE OF SHRI SUBASH L ALASAHEB DESHMUKH IN ITA.NO.2501/PN/2012. FACTS BEING SIMIL AR, SO FOLLOWING THE ABOVE REASONING, WE SET ASIDE THE ORD ER IN QUESTION AND RESTORE THE MATTER TO THE CIT(A) WITH A DIRECTI ON TO DECIDE THE 4 SAME AS PER LAW AND AFTER GIVING OPPORTUNITY OF HEA RING TO THE ASSESSEE. THE APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. 4. SA.NO.178/PN/2012 ARISING OUT OF ITA.NO.2500/PN/ 2012 AND SA.NO.179/PN/2012 ARISING OUT OF ITA.NO.2501/PN/201 2 HAVE BEEN FILED BY THE ASSESSEES. SINCE WE HAVE SET ASI DE THE ORDER OF THE CIT(A), THE ISSUE IN THE STAY PETITIONS BECOME INFR UCTUOUS. SO THE SAME ARE DISMISSED AS INFRUCTUOUS. 5. AS A RESULT, BOTH THE APPEALS ARE SET ASIDE AS I NDICATED ABOVE AND STAY PETITIONS ARE DISMISSED AS INFRUCTUOUS. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF FEBRUARY, 2013. SD/- SD/- ( G.S.PANNU ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 25 TH FEBRUARY, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ACIT, CIRCLE-3, NANDED. 3. THE CIT(A), AURANGABAD. 4. THE CIT, AURANGABAD. 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.