Shri Javed Khan,C/o M/s J.K.enterprises, Allahabad V. ITO, Mirzapur

ITA 295/ALLD/2012

• Counselvise Citation: 29520714 RSA 2012
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP CHAUHAN
• Assessee Lawyers: DR N C AGARWAL
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 295/ALLD./2012 ASSTT. YEAR : 2008-09 SHRI JAVED KHAN, VS. INCOME-TAX OFFICER, PROP. M/S. J.K. ENTERPRISES, RANGE-III(2), MIRZ APUR. 753-A, DARIABAD, ALLAHABAD. (PAN : AHOPK 4536 E) (APPELLANT) (RESPONDENT) APPELLANT BY : DR. N.C. AGARWAL, C.A. RESPONDENT BY : SHRI SANDEEP CHAUHAN, CIT/DR DATE OF HEARING : 07.11.2012 DATE OF PRONOUNCEMENT OF ORDER : 09.11.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A), ALLAHABAD DATED 13.03.2012 FOR THE ASSESSMENT YEAR 2008-09. 2. IN THIS CASE, THE AO NOTED THAT THE ASSESSEE IS A CONTRACTOR AND FILED RETURN OF INCOME AT RS.4,92,510/-. THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED, IN COMPLIANCE TO WHICH SHRI B. RAI, IT P APPEARED FROM TIME TO TIME AND FILED BANK STATEMENT AND DETAILS OF MONTH-WISE EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT. SINCE, THERE WAS NO COMPLETE COMP LIANCE, THEREFORE, THE ASSESSING OFFICER REQUESTED SHRI RAI TO STAY IN THE OFFICE AND NOTE THE REMAINING ITA NO. 295/ALLD./2012 2 QUERIES, BUT HE LEFT THE OFFICE WITHOUT SIGNING THE ORDER SHEET. FURTHER NOTICES WERE SENT FOR COMPLIANCE OF THE QUERIES, BUT THE ASSESS EE DID NOT MAKE COMPLIANCE. THE ASSESSING OFFICER, THEREFORE, FINDING NO ALTERNATE PASSED THE EXPARTE ORDER AFTER MAKING ADDITIONS ON ACCOUNT OF EXTRA PROFIT, UNEXPL AINED INVESTMENT, UNEXPLAINED CASH CREDIT AND DISALLOWANCE OF EXPENSES AND COMPUT ED TOTAL INCOME OF RS.1,87,75,554/-. THE LD. CIT(A) NOTED THAT APPEAL WAS TAKEN UP FOR HEARING AND NOTICE WAS ISSUED FOR 22.09.2011, BUT THE NOTICE RE TURNED WITH THE REMARKS ADDRESSEE HAS LEFT THE PLACE. FURTHER NOTICE WAS ISSUED ON 21.02.2012 FOR 12.03.2012, BUT THERE WAS NO COMPLIANCE. THEREFORE, THE APPEAL WAS ALSO DECIDED EXPARTE AND WHATEVER ADDITIONS WERE MADE BY THE ASS ESSING OFFICER, WERE CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS DISMIS SED. 3. IN THE GROUNDS OF APPEAL, THE ASSESSEE CHALLENGE D THE EXPPARTE ORDERS AS WELL AS ADDITIONS ON MERITS. THE LD. COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSEES COUNSEL MADE PART COMPLIANCE BEFORE THE ASSESSING OFFICER, THEREFORE, EVEN IN THE EXPARTE ORDER, THE ASSESSING OFFICER SH OULD HAVE CONSIDERED THE SAME AND FURTHER, FIRST NOTICE BEFORE THE LD. CIT(A) WAS NOT SERVED UPON THE ASSESSEE AND THE SECOND NOTICE ISSUED ON 12.03.2012 WAS SERVED U PON THE ASSESSEE ON 20.03.2012 THROUGH REGISTERED POST AND SINCE THIS N OTICE WAS RECEIVED LATER ON AFTER HEARING OF THE CASE WAS OVER, THEREFORE, INTIMATION WAS GIVEN TO THE LD. CIT(A), ALLAHABAD VIDE LETTER DATED 22.03.2012 THAT THE NOT ICE WAS RECEIVED AFTER THE DATE ITA NO. 295/ALLD./2012 3 OF HEARING WAS OVER. COPY OF LETTER AND NOTICE ARE PRODUCED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO SUFFICIE NT OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE AND THE ASSESSEE MAINTAINED COMPLETE RECORDS, THEREFORE, TH E MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR RE-CONSIDERATION OF THE I SSUE. THE LD. DR, THOUGH RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW, BUT STATE D THAT THE MATTER MAY BE REMANDED TO THE LOWER AUTHORITY FOR RECONSIDERATION OF THE ISSUE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. THE LD. CIT(A) SPECIFICALLY NOTED IN THE APPELLATE ORDE R THAT THE FIRST NOTICE ISSUED FOR 22.09.2011 RETURNED UN-SERVED AND FURTHER NOTICE IS SUED FOR 12.03.2012 HAS NOT BEEN COMPLIED WITH BY THE ASSESSEE AND THEREFORE, T HE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE NEXT DAY, I.E., ON 13.03.2012. HOW EVER, THE ASSESSEE HAS PRODUCED COPY OF THE LETTER DATED 22.03.2012, ADDRESSED TO T HE LD. CIT(A), ALLAHABAD, INTIMATING HIS OFFICE THAT THE NOTICE ISSUED FOR 12 .03.2012 HAS BEEN SERVED UPON HIM THROUGH REGISTERED POST ON 20.03.2012. THIS LET TER HAS NOT BEEN DISPUTED BY THE LD. DR DURING THE COURSE OF HEARING. IT IS, THEREFO RE, PROVED ON RECORD THAT THE ASSESSEE WAS NOT SERVED WITH ANY VALID NOTICE FOR H EARING OF APPEAL PRIOR TO PASSING OF THE APPELLATE ORDER. THUS, THE ASSESSEE IS DENIE D OPPORTUNITY OF BEING HEARD AT THE APPELLATE STAGE. THEREFORE, THE ORDER OF THE LD . CIT(A) CANNOT BE SUSTAINED IN LAW AND THE MATTER REQUIRES RECONSIDERATION ON MERI TS. FURTHER IT IS NOT IN DISPUTE ITA NO. 295/ALLD./2012 4 THAT AT THE ASSESSMENT STAGE, THE ASSESSEES REPRES ENTATIVE APPEARED BEFORE THE ASSESSING OFFICER AND MADE PART COMPLIANCE. THEREFO RE, WHATEVER COMPLIANCE WAS MADE BY THE ASSESSEE SHOULD HAVE BEEN DISCUSSED IN THE ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E HAS COMPLETE DETAILS ON ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER AND HAS SUG GESTED THAT THE MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR RECONSIDERATI ON. CONSIDERING THE ABOVE, DISCUSSION, WE FIND IT APPROPRIATE TO RESTORE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER INSTEAD OF LD. CIT(A), AS ULTIMATELY, IT IS FOR THE ASSESSING OFFICER TO RE- EXAMINE THE ISSUE ON MERITS BECAUSE THE ASSESSMENT ORDER WAS ALSO EXPARTE. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE ORDE RS OF THE AUTHORITIES BELOW AND RESTORE THE ENTIRE MATTER TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO RE-FRAME THE ASSESSMENT ORDER AFTER GIVING REASONABLE AND SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO MAKE COMPLIANCE OF ALL THE STATUTORY NOTICES BEFORE THE ASSESSING OFFICER. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- ITA NO. 295/ALLD./2012 5 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, ALLAHABAD 6. GUARD FILE ASSTT. REGISTRAR TRUE COPY