Dattatraya Pandurang Jawalkar, Pune V. Income-tax Officer, Ward - 14(4), Pune

ITA 275/PUN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9379 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-01-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 02-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: B C MALAKAR
• Keywords: Principle of natural justice; Set aside

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, P UNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.275/PUN/2018 / ASSESSMENT YEAR : 2014-15 SHRI DATTATRAYA PANDURANG JAWALKAR, AT POST ALANDI, MAHATOBACHI, TAL. HAVELI, DIST. PUNE-412 001. PAN : AGGPJ7572C ....... / APPELLANT ! / V/S. THE INCOME TAX OFFICER, WARD 14(4), PUNE. / RESPONDENT ASSESSEE BY : SHRI B.C. MALAKAR REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 04.04.2019 / DATE OF PRONOUNCEMENT : 04.04.2019 ' / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE LD. CIT(APPEALS)-7, PUNE DATED 04.12.2017 FOR THE ASSESSME NT YEAR 2014-15 AS PER GROUNDS OF APPEAL ON RECORD. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE V EHEMENTLY ARGUED THAT THE LD. CIT(APPEALS) HAS MIS-STATED THE FACTS IN RES PECT OF THE ASSESSEES CASE. THAT FURTHER, THE LD. CIT(APPEALS) IN HIS ORDER HAS MA DE CONTRARY 2 ITA NO. 275/PUN/2018 A.Y.2014-15 STATEMENTS AND OBSERVATIONS. THE LD. AR INVITED OUR ATT ENTION AT PARA 3 OF THE LD. CIT(APPEALS)S ORDER WHEREIN HE HAS STATED THAT THE ASSESSEE IS A CO- OPERATIVE NON SCHEDULED BANK. HOWEVER, AT PARA 5.3, THE L D. CIT(APPEALS) STATES THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RETAIL SALES OF SEEDS AND PESTICIDES. THE ASSESSEE IS IN FACT A RETAIL DEALER OF SEEDS AND PEST ICIDES BUT IN THE ORDER OF THE LD. CIT(APPEALS), HE HAS BROUGHT IN CONFLICT ING FACTS AS REGARDS THE SOURCE OF INCOME OF THE ASSESSEE. THE LD. A R FURTHER SUBMITTED THAT AT PARA 5.2 OF THE LD. CIT(APPEALS)S ORDER, THE LD . CIT(APPEALS) HAS STATED THAT THE ASSESSEE DID NOT FILE ANY WRITTEN SUBMISS IONS WHICH IS CONTRARY TO PARA 5.4 OF THE SAME ORDER OF LD. CIT(APPEA LS) WHEREIN HE HAS STATED THE ASSESSEE HAS SUBMITTED THAT ZONE IS AGRICULTURAL AND NON DEVELOPMENT . THE ASSESSEE FURTHER SUBMITTED THAT GAIN ARISING IS NOT FROM BUSINESS AND RELIED ON THE DECISION OF KERALA H IGH COURT 2.1 THE LD. AR OF THE ASSESSEE CONTENDED THAT IF NOTHING HAS BEEN SUBMITTED BY WAY OF WRITTEN SUBMISSIONS THEN ON WHAT BAS IS THE LD. CIT(APPEALS) ARRIVED AT THE FINDINGS AS STATED AT PARA 5.4 OF HIS ORDER. THE LD. AR EVEN APPRAISED THE BENCH AT PAGES 44 TO 52 OF THE PAPER BOOK WHEREIN THE COPY OF SUBMISSIONS BEFORE THE LD.CIT(APPEALS) HAS BEEN PLA CED AND STATED THAT THE SUBMISSIONS HAS SEAL AND STAMP OF THE DEPARTME NT WHICH SHOWS THAT THOSE WERE RECEIVED IN THE OFFICE OF THE LD.CIT(APPE ALS). THAT AFTER DEMONSTRATING FACTUAL MIS-REPRESENTATION IN THE ORDER OF T HE LD.CIT(APPEALS) AND CONTRARY FINDINGS IN THE SAID ORDER, THE LD. AR OF THE ASSESSEE PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(APPEALS) FOR PROPER ADJUDICATION AND CORRECT APPRECIATION OF THE FACTS. 3 ITA NO. 275/PUN/2018 A.Y.2014-15 3. ON THE OTHER HAND, THE LD. DR WITHOUT GOING INTO THE MERITS CONCEDED TO THE REQUEST OF THE LD. AR FOR RESTORING THE MATTER B ACK TO THE FILE OF THE LD. CIT(APPEALS). 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. AS DEMONSTRATED BY THE LD.AR, IT IS ABSOLUTELY CRYSTAL CLEAR THAT THE LD. CIT(APPEALS) HAS NOT APPRECIATED THE FACTS CORRECTLY IN T HIS CASE. IT IS EVIDENT THAT WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE. HOWEV ER, IN THE BODY OF THE ORDER OF THE LD. CIT(APPEALS)S, HE HAS STATED THAT T HE ASSESSEE HAS NOT SUBMITTED ANY WRITTEN SUBMISSIONS. SIMILARLY, IN ONE PARA THE LD. CIT(APPEALS) WRITES THAT THE ASSESSEE IS DEALING IN SEEDS A ND PESTICIDES HAVING RETAIL BUSINESS WHEREAS IN ANOTHER PARA IN THE SA ME ORDER, THE LD. CIT(APPEALS) STATES THAT THE ASSESSEE IS A CO-OPERATIVE NON SCHEDULED BANK. THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE, WE DE EM IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(AP PEALS) SO THAT HE CAN ADJUDICATE THE MATTER AFTER APPRECIATING THE CORRECT FAC TS IN THE CASE OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CI T(APPEALS) AND RESTORE BACK THE MATTER TO HIS FILE FOR ADJUDICATION AFTER COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSES. ORDER PRONOUNCED ON 04 TH DAY OF APRIL, 2019. SD/- SD/- ANIL CHATURVEDI PA RTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 04 TH APRIL, 2019. SB 4 ITA NO. 275/PUN/2018 A.Y.2014-15 '#$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-7, PUNE. 4. THE CIT-6, PUNE. 5. '#$ %%&' , ( &' , - )*+ , / DR, ITAT, SMC BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 5 ITA NO. 275/PUN/2018 A.Y.2014-15 DATE 1 DRAFT DICTATED ON 04 .0 4 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 04 .0 4 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER