A.C.I.T.-4(1), Agra V. Sh. RamPrakash Garg, Agra

ITA 258/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60189 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-07-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 01-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 258/AGRA/2011 ASSTT. YEAR : 2002-03 A.C.I.T., 4(1), VS. SHRI RAM PRAKASH GARG, AGRA. C/O M/S. PRAKASH HARDWARE STORE, PATHWARI, BELANGANJ, AGRA. (PAN : ACHPG 7828 B) C.O. NO. 53/AGRA/2011 (IN ITA NO. 258/AGRA/2011) ASSTT. YEAR : 2002-03 SHRI RAM PRAKASH GARG, VS. A.C.I.T., 4(1), C/O M/S. PRAKASH HARDWARE STORE, AGRA. PATHWARI, BELANGANJ, AGRA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI WASEEM ARSHAD, SR. D.R. ASSESSEE BY : SHRI MAHESH AGARWAL, C.A. DATE OF HEARING : 18.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 20.07.2012 ORDER PER BHAVNESH SAINI, J.M.: THE DEPARTMENTAL APPEAL AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, AG RA DATED 01.03.2011 FOR THE ASSESSMENT YEAR 2002-03. ITA NO. 258/AGRA/2011 2 2. THE REVENUE IN ITS APPEAL CHALLENGED THE DELETIO N OF ADDITION OF RS.29,53,142/- AND RS.1,18,127/-. THE ASSESSEE IN T HE CROSS OBJECTION CHALLENGED THE ORDER OF THE LD. CIT(A) IN DISMISSIN G THE GROUNDS RELATING TO EXEMPTION CLAIMED BY THE ASSESSEE U/S. 54EC OF THE IT ACT. 3. THE ASSESSEE CHALLENGED THE ADDITION OF RS.29,53 ,182/- AND RS.1,18,127/- BEFORE THE LD. CIT(A), WHICH WERE MAD E BY THE AO ON ACCOUNT OF RECEIPT OF SALE OF SHARES AND COMMISSION CHARGES RESPECTIVELY. THE LD. CIT(A) NOTED THE SALE OF SHARES DURING THE YEAR AT PAGE 2 OF THE APPELLATE ORDER, BUT THE AO DID NOT FIND GENUINENESS OF TRANS ACTION OF SHARES AND ADDITIONS WERE ACCORDINGLY MADE. THE WRITTEN SUBMIS SION OF THE ASSESSEE IS INCORPORATED AT PAGE 2 TO 11 OF THE APPELLATE ORDER . THEREAFTER THE LD. CIT(A) NOTED THAT THE ISSUE IS COVERED BY THE ORDER OF ITA T, AGRA BENCH IN THE CASE OF RAJESH KUMAR GARG AND ACCORDINGLY, DELETED THE S IMILAR ADDITION. HE HAS ALSO NOTED THE DECISION OF ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. NITIN GUPTA AND SHUBHAM GUPTA, IN WHICH THE DEPARTMENTAL APPEALS HAVE BEEN DISMISSED AND ACCORDINGLY, BOTH THE ADDITIONS WERE DELETED AND THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED, ON WHICH THE REVENUE IS IN APPEAL. FURTHER, THE LD. CIT(A) WITH REGARD TO GROUND RELATING TO NO N-ALLOWANCE OF DEDUCTION U/S. 54EC OF THE ACT NOTED THAT NOTHING IS STATED O N THE WRITTEN SUBMISSIONS ITA NO. 258/AGRA/2011 3 AND ACCORDINGLY, THIS GROUND WAS DISMISSED. ON THIS ISSUE, THE ASSESSEE IS IN CROSS OBJECTION. 4. THE LD. DR POINTED OUT TOWARDS DETAILED FACTS NO TED BY THE AO IN THE ASSESSMENT ORDER AND SUBMITTED THAT THE FACTS BROUG HT ON RECORD BY THE AO AND HIS OBJECTIONS HAVE NOT BEEN CONSIDERED BY THE LD. CIT(A) IN THE APPELLATE ORDER AND NO FINDING OF FACT HAS BEEN GIV EN IN THE APPELLATE ORDER. HE HAS SUBMITTED THAT THE FACTS IN THE CASE OF RAJE SH KUMAR GARG ARE TOTALLY DIFFERENT FROM THE CASE OF THE ASSESSEE WHICH IS ME RELY RELIED UPON BY THE LD. CIT(A) FOR THE PURPOSE OF DELETING THE ADDITION. TH E LD. COUNSEL FOR THE ASSESSEE, THOUGH SUPPORTED THE ORDER OF THE LD. CIT (A), WHO ADMITTED THAT NO FINDING OF FACT HAS BEEN RECORDED BY THE LD. CIT(A) IN THE APPELLATE ORDER AND SIMILARLY WITH REGARD TO DEDUCTION U/S. 54EC, HE HA D SUBMITTED THAT THE LD. CIT(A) WITHOUT GIVING ANY FINDING, DISMISSED THIS G ROUND OF APPEAL OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE FINDINGS OF THE AUTHORITIES BELOW. ACCORDING TO SECTION 250(6) OF T HE ACT, THE LD. CIT(A) SHALL HAVE TO NOTE THE POINTS OF DETERMINATION IN T HE APPELLATE ORDER AND THE REASONS FOR DECISION. THE LD. CIT(A) MERELY NOTED B RIEF FACTS AND ITA NO. 258/AGRA/2011 4 INCORPORATED THE WRITTEN SUBMISSION OF THE ASSESSEE IN THE APPELLATE ORDER AND WITHOUT POINTING OUT AS TO HOW THE FACTS OF THE CASE OF THE ASSESSEE ARE SIMILAR TO THE CASE OF RAJESH KUMAR GARG, DELETED T HE ADDITION. THE DEPARTMENT CONTENDED THAT THE FACTS IN THE CASE OF RAJESH KUMAR GARG ARE ALTOGETHER DIFFERENT. THUS, NO FINDING OF FACT HAS BEEN GIVEN IN THIS CASE AND EVEN NOTHING IS POINTED OUT AS TO HOW THE FACTS OF BOTH THE CASES ARE SIMILAR. FURTHER, NO FINDING AND REASON FOR ORDER HAVE BEEN GIVEN FOR DISMISSING THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 54EC OF TH E IT ACT. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ALL THE MATERIAL WA S BEFORE THE LD. CIT(A) AND THE AO ON THIS ISSUE WHICH HAS BEEN IGNORED BY THE LD. CIT(A). THUS, NO FINDING OF FACT HAS BEEN GIVEN EVEN ON THE ISSUE RA ISED IN THE CROSS OBJECTION BY THE ASSESSEE. THE LD. CIT(A) MERELY GOING THROUG H THE WRITTEN SUBMISSIONS, DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. THUS, THE ORDER OF THE LD. CIT(A) SUFFERS FROM LEGAL INFIRMITY AND CANNOT BE SUSTAINED IN LAW. THE LD. CIT(A) SHALL HAVE TO RECORD REASONS FOR DEC ISION WHILE ALLOWING OR DISMISSING THE APPEAL. THE LD. CIT(A), HOWEVER, DID NOT RECORD ANY REASONS FOR DECISION EITHER FOR ALLOWING OF THE APPEAL OF A SSESSEE PARTLY OR DISMISSING THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) ON BOTH THE ISSUES AND REST ORE BOTH THE ISSUES TO HIS FILE WITH THE DIRECTION TO RE-DECIDE THE SAME AFRES H BY GIVING REASONABLE AND ITA NO. 258/AGRA/2011 5 SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE LD. CIT(A) SHALL PASS THE ORDER ON MERITS BY GIVING REASONS FOR DECI SION IN THE APPELLATE ORDER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND CRO SS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY