Niranjan Rout, Rourkela V. ITO, Rourkela

ITA 296/CTK/2012

• Counselvise Citation: 29622114 RSA 2012
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 13-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2012
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: D PATI
• Keywords: Principle of natural justice; Non compliance
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 296/CTK/2012 / ASSESSMENT YEAR 2007 - 08 SRI NIRANJAN ROUT, PLOT NO.E/176, M.S.NAGAR, CHHEND COLONY, ROURKELA 15 PAN: ADVPR 0115 R - - - VERSUS - INCOME - TAX OFFICER, WARD 2, ROURKELA ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI D.PATI, AR / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / DATE OF HEARING: 13.09.2012 / DAT E OF PRONOUNCEMENT: 30.10.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT.13.01.2012 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESS MENT YEAR 2007 - 08. 2. THE ASSESSEE RAISES THE FOLLOWING ISSUES IN ITS GROUNDS OF APPEAL. 1 - FOR THAT THE LD. CIT (A) - LL,BHUBANESWAR HAS PASSED THE ORDER MECHANICALLY ,AND NOT GONE IN TO THE MERITS OF THE CASE. 2 - FOR THAT THERE IS NO INGREDIENT FOR REOPENI NG OF THE CASE AS PROVIDED U/S 148 OF THE IT ACT. 3 - FOR THAT THE APPELLANT CANNOT BE PUNISHED FOR THE NON COMPLIANCE OF THE AO. 4 - FOR IN ABSENCE OF THE REMAND REPORT, THE PASSING OF THE APPEAL ORDER IS IMPROPER. 5 - FOR THAT THE AO SHOULD HAVE BEEN FORCED TO SUBMIT THE REMAND REPORT BEFORE THE PASSING OF THE APPEAL ORDER. 6 - FOR THAT THE FINDING OF THE L D . AO THAT THE APPELLANT HAS NOT DISCLOSED THE AMOUNT OF THE BILLS RECEIVABLE OF 6,48,015 IN COMPUTATION OF THE RETURNED TOTAL INCOME OF 2,93,490 IS NOT CORRECT. 7 - FOR THAT THE SAID AMOUNT HAS DULY BEEN INCLUDED IN THE GROSS CONTRACT RECEIPT OF 47,90,423 AND TAX COMPUTED ON IT. I.T.A.NO. 296/CTK/2012 2 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE ASSESSEE AND THEIR LEGAL IMPLICATIONS. 4. ON CAREFUL CONSID ERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES, THE UNDISPUTED FACTS RELATING TO THE ISSUES ARE THAT THE ASSESSEE DERIVES INCOME FROM CIVIL CONTRACT WORK. IT FILED ITS RETUR N OF INCOME ON 25.10.2007 DECLARING TOTAL INCOME AT 2,93,490. THE SAID RETURN WAS PROCESSED U/S.143(1) ACCEPTING THE RETURNED INCOME. SUBSEQUENTLY, ON VERIFICATION OF RET URN ALONG WITH T HE ENCLOSURES , THE AO FOUND THAT THE AS SE SS E E HAD SHOWN RE CE IVABLE OF 6,48,015 AND OUTSTANDING STATUTORY LIABILITY AND S ERVICE TAX & 1,02 ,78 6 IN THE BALANCE SHEET . HOWEVER THE ASSESSEE HAD TA KEN ONLY GROSS RECEIPT AS PER TD S CERTIFICATE. SINCE THE ASSESSEE MAINTAINS ACCOUNT ON MERCANTILE SYSTEM, RE CE IPTS AND PAYMENTS WERE REQU IRED TO BE ACCOUNTED FOR ON ACCRUAL BAS IS . THE REFORE, THE ASSESSING OFFICER WAS OF THE VIEW THAT NON - ACCOUNTAL OF BILLS RECEIVABLE AND NON - PAYMENT OF SERV ICE TAX LIABILITY RESULTED IN UNDER - STATEMENT OF I NCOME OF 7,50,801/ - . HENCE, THE ASSESSING OFFICER INITIATED PROCEEDINGS U/S.148 AND DURING THE CO URSE OF SAID PROCEEDINGS THE ASSESSEE ADMITTED THAT THE BILLS RECEIVABLE AMOUNT HAS WRONGLY NOT BEEN ACCOUNTED FOR. THEREFORE, THE ASSESSING OFFICER MADE ADDITION OF 6,48,015. 5. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORIT Y ON THE GROUND INTER - ALIA THAT THE SAID AMOUNT OF RS.6,48,015 RELATING TO THE BILLS RECEIVABLE ARE DULY INCLUDED IN THE GROSS CONTRACT RECEIPTS OF 47,90,423 AND THE ASSESSEE HAD NOT BEEN GIVEN A CHANCE OF SUBMITTING THE EXPLANATION. THE LEARNED CIT(A) AF TER PART HEARING DIRECTED THE AO TO SUBMIT A REMAND REPORT ON SPECIFIC POINTS BUT NO REPORT WAS FURNISHED BY THE ASSESSING OFFICER. ON THE DATE OF HEARING, NEITHER THE I.T.A.NO. 296/CTK/2012 3 ASSESSING OFFICER NOR ANYBODY ON BEHALF OF THE ASSESSEE APPEARED BEFORE THE LEARNED CIT( A) AND THEREFORE, HE CHOSE TO DISPOSE OF THE APPEAL EXPARTE AND CONFIRMED THE ADDITION FOR THE REASON AS INDICATED IN PARAGRAPH 7 OF HIS ORDER THAT THE ASSESSEE HAS NOT SHOWN BILLS RECEIVABLE IN THE GROSS RECEIPTS. HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. HAVING HEARD BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE LEARNED CIT(A) HAS PASSED HIS ORDER EXPARTE. WE FURTHER FIND THAT THE LEARNED CIT(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER BUT THE LATER HAS NOT FURNISHED THE SAME. IN OUR CONSIDERED VIEW, THE LEARNED CIT(A) SHOULD HAVE ENFORCED THE ASSESSING OFFICER TO SUBMIT THE REMAND REPORT, AS RIGHTLY CONTENDED BY THE LEARNED AR OF THE ASSESSEE BEFORE US. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO HIS FILE FOR DECIDING THE SAME AFRESH AFTER OBTAINING NECESSARY REMAND REPORT FROM THE ASSESSING OFFICER AND AF TER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE BY STRICTLY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - ( . . ) , , (K.K.GUPTA) , ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 30.10.2012 ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 296/CTK/2012 4 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SRI NIRANJAN ROUT, PLOT NO.E/176, M.S.NAGAR, CHHEND COLONY, ROURKELA 15 2 / THE RESPONDENT: INCOME - TAX OFFICER, WARD 2, ROURKELA 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 03.10.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03.10.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH T HE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.10.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRA R FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..