AMIT KUMAR GUPTA, ALLAHABAD V. ITO, Ward 1(1), Allahabad

ITA 3/ALLD/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7309 (ITAT-ALLAHABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Reasonable cause; Corroborative evidences; Set aside
• Section: 250; 251; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD SMC BENCH, ALLAHABAD (THROUGH VIRTUAL COURT) BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.03/ALLD/2021 ASSESSMENT YEAR: 2008-09 AMIT KUMAR GUPTA 54/4, MUIR ROAD, RAJAPUR, ALLAHABAD- 211001 V. INCOME TAX OFFICER, WARD-1(1) AAYKAR BHAWAN, 38 M.G. MARG, CIVIL LINES ALLAHABAD, U.P. (APPELLANT) (RESPONDENT) APPELLANT BY: MR. SANJAY KUMAR, ADV. RESPONDENT BY: MR. A.K. SINGH, SR. DR DATE OF HEARING: 16.08.2021 DATE OF PRONOUNCEMENT: 17.08.2021 O R D E R PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27 TH MARCH, 2015 OF CIT(A) FOR THE ASSESSMENT YEAR 2008-09. THERE IS A DELAY OF 428 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDENSATION OF DELAY WHICH WAS SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE FILED SEPARATELY AT A LATER STAGE. 2. I HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE REASONS EXPLAINED BY THE ASSESSEE FOR DELAY IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS EXPLAINED THE DELAY THAT HE WAS UNDERGOING THE TREATMENT AND INVESTIGATION OF SUSPECTED CASE OF CANCER PATIENT. FINALLY, THE ASSESSEE WAS FOUND TO BE SUFFERING FROM ACUTE TUBERCULOSIS AND UNDERGONE A LONG TREATMENT. APART FROM THE SAID DISEASE, THE ASSESSEE IS ALSO SUFFERING FROM A RARE NERVE DISEASE. THE ASSESSEE HAS FILED MEDICAL REPORT OF UNDERGOING TREATMENT. FURTHER THE ASSESSEE HAS EXPLAINED THAT THE ASSESSEE DID NOT RECEIVE THE IMPUGNED OF CIT(A) AND SAME WAS TAKEN BY WAY OF CERTIFIED COPY ITA NO.03/ALLD/2021 AMIT KUMAR GUPTA 2 ON 18.10.2019. ON THE OTHER HAND, LD. DR HAS OBJECTED TO THE CONDONATION OF INORDINATE DELAY IN FILING THE APPEAL. 3. HAVING CONSIDERED THE EXPLANATION OF THE ASSESSEE AS WELL AS IN THE INTEREST OF JUSTICE, THE DELAY OF 428 DAYS IN FILING THE PRESENT APPEAL IS CONDONED THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) PASSED THE ORDER IN HASTE WITHOUT PROVIDING REASONABLE AND SUFFICIENT OPPORTUNITY AS DIRECTED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN THE ORDER DATED 18/03/2013. 2. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS. 2,50,500/- U/S 69 OF THE INCOME TAX ACT, 1961 AS ADDED BY THE LD. ASSESSING OFFICER IN HIS ORDER DATED 31/12/2010. 3. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS, 12,17,500/- U/S 69 OF THE INCOME TAX ACT, 1961. 4. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING SALES AS DETERMINED AT RS, 3,00,00,000/-BY THE ASSESSING OFFICER AS AGAINST THE DISCLOSED TURNOVER OF RS, 1,52,37,193/-. 5. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE NET PROFIT RATE OF 6% AS APPLIED BY THE ASSESSING OFFICER. 6. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS. 13,38,018/- MADE BY THE ASSESSING OFFICER. 4. THIS IS THE SECOND ROUND OF APPEAL AS EARLIER THIS TRIBUNAL VIDE ORDER DATED 18.06.2013 SET ASIDE THE MATTER TO THE RECORD OF THE CIT(A) FOR DECIDING THE SAME ON MERITS BY GIVING A REASONABLE AND SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE IN THE SET ASIDE PROCEEDINGS AGAIN THE CIT(A) HAS PASSED AN EX-PARTE IMPUGNED ORDER. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ADDITIONS WERE MADE BY THE AO FOR WANT OF SUPPORTING THE EVIDENCE AND SINCE THE AO AS WELL AS CIT(A) HAS PASSED EX- PARTE ORDERS THE EVIDENCE IN SUPPORT OF THE CLAIM COULD NOT BE PRODUCED AND CONSIDERED BY THE AUTHORITIES BELOW. HE HAS FILED AN APPLICATION FOR ADMISSION OF THE ADDITIONAL EVIDENCE IN SUPPORT OF VARIOUS CLAIMS AND PLEADED THAT THE MATTER MAY BE REMANDED TO THE RECORD OF THE AO FOR DECIDING THE SAME AFRESH, AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. ITA NO.03/ALLD/2021 AMIT KUMAR GUPTA 3 5. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE AO AS WELL AS CIT(A) AND EVEN IN THE SET ASIDE PROCEEDINGS BEFORE THE CIT(A), THE ASSESSEE DID NOT APPEAR WHICH SHOWS THE CASUAL APPROACH AND GROSS NEGLIGENCE ON THE PART OF THE ASSESSEE. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ORDER EX-PARTE UNDER SECTION 144 OF THE INCOME TAX ACT AND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS. 37,18,180/- AS AGAINST THE INCOME SHOWN BY THE ASSESSEE AT RS. 4,61,982/-. THE ASSESSING OFFICER HAS MADE VARIOUS ADDITIONS FOR WANT OF SUPPORTING EVIDENCE AND EXPLANATION. IN THE FIRST ROUND OF APPEALS, THE CIT(A) PASSED AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WHICH WAS SET ASIDE BY THIS TRIBUNAL VIDE ORDER DATED 18.06.2013 FOR GRANTING SUFFICIENT AND APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE SET ASIDE PROCEEDINGS AGAIN, THE CIT(A) HAS PASSED THE EX-PARTE ORDER AS NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. TO THE EXTENT OF GRANTING THE OPPORTUNITIES TO THE ASSESSEE BY THE CIT(A), I DO FIND THAT ANY ERROR AS DESPITE THE SECOND ROUND OF LITIGATION THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A). HOWEVER, THE CIT(A) WHILE PASSING THE IMPUGNED ORDER HAS AGAIN DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT DECIDING THE SAME ON MERITS. THE RELEVANT PART OF THE ORDER OF THE CIT(A) READS AS UNDER; IN THE SECOND INNING, THE APPELLANT HAS NOT CO-OPERATED AT ALL IN SPITE OF GIVING AFFIDAVIT BEFORE THE HONBLE IAT. HONBLE SUPREME COURT IN THE CIT VS. B. BATTACHARYA & ANOTHER 118 ITR 461 OBSERVED THAT PREFERRING AN APPEAL MEANS EFFECTIVELY PURSUING IT. IT MEANS, IF THE ASSESSEE IS NOT PURSUING THE APPEAL WITHOUT ANY REASONABLE CAUSE, IT MAY BE PRESUMED THAT HE MAY NOT BE INTEREST IN TAKING THE ISSUE SERIOUSLY BEFORE THE APPELLATE AUTHORITY OR HE MAY NOT BE ABLE TO SUBSTANTIATE THE GROUNDS TAKEN IN THE APPEALS. HOBNBLE M.P. HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 DISMISSED THE REFERENCE FILED BY THE ASSESSEE FOR NOT TAKING NECESSARY STEPS. ITA NO.03/ALLD/2021 AMIT KUMAR GUPTA 4 7. THUS, THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR WANT OF PROSECUTION WITHOUT ADJUDICATING THE SAME ON MERITS WHICH IS NOT SUSTAINABLE IN VIEW OF THE PROVISIONS OF SECTIONS 250 AND 251 OF THE INCOME TAX ACT. 8. ACCORDINGLY, THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE. SINCE THE ASSESSEE HAS FILED AN ADDITIONAL EVIDENCE IN SUPPORT OF THE CLAIM WHICH COULD NOT BE PRODUCED BEFORE AO THEREFORE, IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, THE MATTER IS REMANDED TO THE RECORD OF THE AO FOR ADJUDICATION OF THE SAME AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AS WELL AS GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.08.2021 THROUGH VIDEO CONFERENCING. SD/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 17/08/2021 ALLAHABAD SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) , ALLAHABAD 4. CIT 5. DR - BY ORDER ASSISTANT REGISTRAR