Shri Sumit Goyal C/o Shri Ram Lakhan Goyal Mohalla Thateron Ka, Shrimadhopur, Dist-Sikar C/o- S.L. Poddar & Company E-3A, Kanti Chandra Road, Bani Park, Jaipur, Jaipur V. Income Tax Officer Circle-6, Neema Ka Thana, Circle-6, Neema ka thana

ITA 295/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6509 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Corroborative evidences; Set aside
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH ,U-DS-LSUH] MIK/;{K ,OA JH LANHI XLKA ] U;KF;D LNL; DS LE{K BEFORE: SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANDEEP GOSAIN, JM VK;DJ VIHY LA -@ ITA NO. 295/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2015-16 SHRI SUMIT GOYAL, C/O- SHRI RAM LAKHAN GOYAL, MOHALLA THATERON KA, SHRIMADHOPUR, DISTT.-SIKAR. CUKE VS. I.T.O., WARD- NEEM KA THANA. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AYLPG 9021 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/09/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT :14/09/2020 VKNS'K@ ORDER PER: N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)- 3, JAIPUR DATED 02/01/2019 FOR THE A.Y. 2015-16. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN PASSING THE EX PARTE ORDER WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD WHICH IS VOID AB-INITIO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 10,64,235/- U/S 68 OF THE INCOME TAX ACT, 1961 MADE BY THE LD. AO ON ACCOUNT OF SALE OF SHARES WHICH IS EXEMPT U/S 10(38) OF THE INCOME TAX ACT, 1961. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO AS WELL AS THE LD. CIT(A) HAVE ERRED IN NOT GIVING OPPORTUNITY OF THE CROSS EXAMINATION OF THE PERSONS ON WHOSE STATEMENT HE RELIED UPON. ITA 295/JP/2019_ SHRI SUMIT GOYAL VS ITO 2 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO AS WELL AS THE LD. CIT(A) HAVE ERRED IN NOT PROVIDING THE COMPLETE MATERIAL ON WHICH HE RELIED UPON AND OPPORTUNITY TO CONFRONT THE SAME BEFORE COMPLETION OF THE ASSESSMENT. 5. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 3. THE MAIN GRIEVANCE OF THE ASSESSEE RAISED IN THIS APPEAL RELATES TO EX PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING HIM PROPER OPPORTUNITY OF HEARING. 4. FACTS IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30/09/2015 DECLARING TOTAL INCOME OF RS. 2,94,320/-. HOWEVER, ASSESSMENT WAS FRAMED BY THE A.O. AT AN INCOME OF RS. 13,58,560/-. 5. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO SUSTAINED THE ADDITION MADE BY THE A.O. BY PASSING EX PARTE ORDER BY OBSERVING AS UNDER: 4. THE PRESENT APPEAL IS AGAINST THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. I HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND ASSESSMENT ORDER. AS ALREADY DISCUSSED ABOVE, THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION FOR SUBMISSION IN SUPPORT OF THE GROUNDS RAISED IN THIS APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED BY HIM DESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. ITA 295/JP/2019_ SHRI SUMIT GOYAL VS ITO 3 IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 WHEREIN THE HON'BLE COURT HAS HELD THAT HE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGMENT IN PLACE OF THE JUDGMENT OF THE A.O. UNLESS IT IS SHOWN THAT THE JUDGMENT OF THE A.O. WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS. IN THE INSTANT CASE THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O. WAS ARBITRARY, BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS WITHOUT ANY BASIS, I FIND NO REASON TO INTERFERE WITH THE DECISION OF THE A.O. 6. NOW THE ASSESSEE IS IN APPEAL AGAINST THE EX PARTE ORDER PASSED BY THE LD. CIT(A). 7. THE LD. COUNSEL APPEARED ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS NOT PROVIDED DUE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE EVEN THE NOTICE FOR HEARING WAS NOT SERVED ON THE ASSESSEE. 8. THE LD DR HAS SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) HAS PASSED EX PARTE ORDER, HOWEVER, IT HAS NOT BEEN BROUGHT ON RECORD THAT THE NOTICE FOR HEARING WAS SERVED TO THE ASSESSEE. SHE SIMPLY STATED THAT NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE. IT IS WELL SETTLED LAW THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM OF AUDI ALTERM PARTEM, WE THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF ITA 295/JP/2019_ SHRI SUMIT GOYAL VS ITO 4 NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH SEPTEMBER, 2020. SD/- SD/- LANHI XLKA ,U-DS -LSUH (SANDEEP GOSAIN) (N.K. SAINI) U;KF;D LNL;@ JUDICIAL MEMBER MIK/;{K @ VICE PRESIDENT TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14/09/2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SUMIT GOYAL, SHRIMADHOPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD- NEEM KA THANA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 295/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR