Rabindra Kumar Jena, Koraput V. ITO, Ward-1, Jeypore

ITA 309/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3877 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: L N SAHOO
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 309 /CTK/2016 ASSESSMENT YEAR : 2008 - 09 RABINDRA JENA, PROP. RABINDRA FARM HOUSE, JECL SHOPPING COMPLEX JEYPORE, KORAPUT VS. ITO, WARD - 1, JEYPORE PAN/GIR NO. AAUPJ 3547 R (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI L.N.SAHOO, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 05 /04 / 2017 DATE OF PRONOUNCEMENT : 05 /04 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1, BHUBANESWAR, DATED 28.3 .2016 FOR THE ASSESSMENT YEAR 2008 - 09 . 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT AS MADE U/S. 143(3) OF THE INCOME TAX ACT BY THE ASSESSING OFFICER AND EX - PARTE APPEAL ORDER PASSED BY THE COMMISSIONER OF INCOME T AX (APPEALS) - 1 ARE ARBITRARY, EXCESSIVE AND BAD IN LAW. 2. THAT THE APPELLANT HAVING PRODUCED THE BALANC E SHEET, PROFIT & LOSS ACCOUNT BEFORE THE ASSESSING AUTHORITY, THE COMPLETION OF ASSESSMENT MAKING ADDITION OF RS. 30,000.00 ON ACCOUNT OF PERSONAL DRAWING AND DISALLOWANCE OF EXPENSES AMOUNTING TO 2 ITA NO. 309 /CTK/2016 ASSESSMENT YEAR :2008 - 09 RS. 60,000.00 AND ADDITION MADE ON ACCOUNT OF SUNDRY CREDI TOR AMOUNTING TO RS. 45,667.00 AND CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, EXCESSIVE AND BAD IN LAW. 3. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE ALLOWED FURTHER OPPORTUNITY TO THE APPELLANT FOR PRODUCING THE RE LEVANT DOCUMENTS IN RELATION TO DISALLOWANCE AND ADDITION MADE BY THE ASSESSING OFFICER AND NON - GRANT OF OPPORTUNITY IS IN CLEAR VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND AS SUCH THE ORDER OF THE CIT (APPEALS) MAY KINDLY BE SET - ASIDE. 4. THAT THE OTHER GROUNDS IF ANY WILL BE URGED AT THE TIME OF HEARING OF THE APPEAL. 5. THAT THE APPELLANT BE ALLOWED AN OPPORTUNITY OF BEING HEARD. 3. THIS APPEAL WAS FILED BY THE ASSESSEE ON 16.8.2016. THE REGISTRY ISSUED A DEFECT MEMO TO THE ASSESSEE TO FILE CONDONATION PETITION FOR EXPLAINING THE DELAY IN FILING THE APPEAL. THEREAFTER, THE ASSESSEE FILED AFFIDAVIT DATED 31.12.2016 TO SUPPORT THE CONDONATION PETITION FOR CONDONING THE DELAY, WHEREIN, IT HAS BEEN STATED THAT THE ORDER OF THE CIT(A) WAS RECEIVED ON 1.4 .2016 BY THE ASSESSEE. BUT IN FORM 36, IT HAS BEEN STATED THAT THE ORDER OF THE CIT(A) WAS RECEIVED ON 21.3.2016. AFTER RECEIPT OF THE ORDER, THE ASS ESSEE WAS SUFFERING FROM LOWER B ACK PAIN AND AS SUCH COULD NOT MEET HER ADVOCATE FOR HANDIN G OVER THE APPEAL MEMO WITH ORIGINAL PAPERS AND DOCUMENTS FOR FILIN G OF APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE RECOVERED FROM ILLNESS ON 18.6.2016 AND THEREAFT ER THE APPEAL WAS FILED ON 16.8. 2016 AND, THEREFORE, THERE WAS DELAY IN FILING OF APPEAL. 3 ITA NO. 309 /CTK/2016 ASSESSMENT YEAR :2008 - 09 4. ON PERUSAL OF APPEAL PAPERS, I FIND THAT THE APPEAL WAS FILED ON 16.8. 2016 ALONGWITH CONDON ATION PETITION . FURTHER THE ORDER OF THE CIT(A) WAS RECEIVED BY THE ASSESSEE ON 28.3.2016 AS PER FORM NO.36 FILED BY THE ASSESSEE. THUS, THERE WAS A DELAY OF 81 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE CONDONATION PETITION, THE ASSESSEE STATED THAT THE ORDER OF THE CIT(A) WAS RECEIVED ON 1.4.2016. IN PARA 4 OF THE CONDONATION PETITION, THE NO. OF DAYS OF DELAY HAS BEEN LEFT BLANK. FURTHER, IT IS OBSERVE D FROM THE APPEAL RECORDS THAT THE APPEAL FEE WAS PAID BY THE ASSESSEE ON 8.8. 2016 OF RS.3344/ - AS EVIDENCED BY THE BANK CHALLAN OF UCO BANK, ASHOK MARKET, BHUBANESWAR FOR RS.3344 / - PLACED ON RECORD , WHICH IS LATER ON RECTIFIED BY DEPOSI TI NG BALANCE AMOUNT OF RS.2875/ - ON 14.1.2017 . THEREFORE, THE ASSESSEE HAS FAILED TO EXPLAIN THE DELAY IN FILING OF APPEAL TO THE TRIBUNAL OF 81 DAYS WITH COGENT AND PLAUSIBLE REASONS. THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS UNADMITTED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS UNADMITTED. ORDER PRO NOUNCED IN THE OPEN COURT ON 05 /04 /2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 05 /04 /2017 B.K.PARIDA, SPS 4 ITA NO. 309 /CTK/2016 ASSESSMENT YEAR :2008 - 09 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CU TTACK 1. THE APPELLANT : RASMITAJENA, W/O RABIDNRA KUMAR JENA, AT: JELC SHOPPING COMPLEX JEYPORE, KORAPUT 2. THE RESPONDENT. ITO, WARD NO.1, JEYPORE 3. THE CIT(A) - 1, BHUBANESWAR. 4. PR.CIT - 1, BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//