SHRI KAILASH TIWARI, Pipariya V. THE ITO - 1, Itarsi

ITA 309/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5670 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Additional evidence
• Section: 144

Judgement Text

KAILASH TIWARI ITA NO. 309/IND/2015 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ I.T.A. NO. 309/IND/2015 / ASSESSMENT YEAR: 2007-08 SHRI KAILASH TIWARI PIPRIA PAN AESPT-0082P :: / APPELLANT VS INCOME TAX OFFICER 1 ITARSI :: / RESPONDENT ! ' # $ / ASSESSEE BY SHRI S.S. DESHPANDE %& ' # $ / REVENUE BY SHRI MOHD. JAVED - DR ' ( ' !) DATE OF HEARING 3.5. 2017 *+,- ' !) DATE OF PRONOUNCEMENT 5 . 5 .2017 / O R D E R PER SHRI C.M. GARG, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 27.2.2015 IN FI RST APPEAL NO. CIT(A)-I/BPL/IT-210/12-13 FOR THE ASSESSMENT YEAR 2007-08. KAILASH TIWARI ITA NO. 309/IND/2015 2 2. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NOS. 1 AND 1.2. THESE GROUNDS ARE, THEREFORE, DISMISSED AS NOT PRESSED. 3. WE HAVE HEARD BOTH THE SIDES. BOTH THE PARTIES A GREED THAT GROUND NO. 2 SHOULD BE DECIDED FIRST. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSING OFFICER PASSED THE EX-PARTE ASSESSMENT OR DER U/S 144 OF THE ACT AND THE COMMISSIONER OF INCOME TAX (APPEALS ) DID NOT CONSIDER THE ADDITIONAL EVIDENCE FILED BEFORE HIM B Y ALLEGING THAT THE ASSESSEE HAD NOT FURNISHED ANY APPLICATION DEMONSTR ATING THAT HIS CASE FALLS UNDER RULE 46A OF THE IT RULES FOR ADMIT TING ADDITIONAL EVIDENCE AND THE RELEVANT DOCUMENTS PLACED AT SERIA L NOS. 4, 5.1, 5.2 AND 6.2 WERE NOT ADMITTED AND CONSIDERED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WHILE PARTLY DISMISSING THE APPEAL OF THE ASSESSEE. FINALLY, THE LEARNED COUNSEL FOR THE ASSE SSEE PRAYED THAT THE CASE MAY BE RESTORED TO THE FILE OF THE ASSESSI NG OFFICER FOR FRESH ADJUDICATION TO AVOID MULTIPLICITY OF PROCEEDINGS B Y SETTING ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. BEFORE U S ALSO, THE KAILASH TIWARI ITA NO. 309/IND/2015 3 LEARNED COUNSEL FOR THE ASSESSEE HAS FILED AN APPLI CATION FOR ADMISSION OF ADDITIONAL EVIDENCE. 5. ON THE OTHER HAND, THE LEARNED DR STRONGLY SUPPO RTED THE ACTION OF THE ASSESSING OFFICER AND THE FIRST APPEL LATE AUTHORITY WITH THE SUBMISSION THAT AS NOTED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AT PAGE 4, NINE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE AND THEREAFTER WHEN ON CONSECUTIVE TWO HEARINGS THE ASSESSEE DID NOT TURN UP, THE ASSESSING OFFICER HAD NO OPTION B UT TO PROCEED EX- PARTE U/S 144 OF THE ACT. THE LEARNED DR CONTENDED THAT THERE WAS NO APPLICATION UNDER RULE 46A OF IT RULES FOR ADMIS SION OF ADDITIONAL EVIDENCE BEFORE THE ASSESSING OFFICER AN D THE SAME WAS FILED AT BELATED STAGE BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS) WITHOUT ASSIGNING ANY REASON. THEREFORE, THE SAME WAS RIGHTLY DISMISSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT ANY ADMISSION AND CONSIDERATION. HOWEVER, I N ALL FAIRNESS, THE LEARNED DR SUBMITTED THAT IF IT IS FELT JUST, P ROPER AND NECESSARY IN THE INTEREST OF JUSTICE, THE DEPARTMENT HAS NO S ERIOUS OBJECTION IF THE CASE IS RESTORED TO THE FILE OF THE ASSESSING O FFICER FOR FRESH ADJUDICATION AND DE NOVO FRAMING OF ASSESSMENT. KAILASH TIWARI ITA NO. 309/IND/2015 4 6. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL CONT ENTIONS, WE MAY POINT OUT THAT THE ASSESSING OFFICER HAS PASSED EX-PARTE ORDER U/S 144 OF THE ACT AND THUS THE ASSESSEE WAS PREVEN TED BY SUFFICIENT CAUSE IN FILING THE RELEVANT DOCUMENTS A ND EXPLANATION AS REQUIRED BY THE ACT WHICH RESULTED INTO ADDITION OF RS.15,96,972/-. DURING THE FIRST APPELLATE PROCEEDINGS THE ADDITION AL EVIDENCE AND THE EXPLANATION OF THE ASSESSEE, WHICH COULD NOT BE SUBMITTED BEFORE THE ASSESSING OFFICER, WAS NOT ADMITTED AND CONSIDERED IN THE ABSENCE OF PROCEDURAL COMPLIANCE I.E. APPLICATI ON UNDER RULE 46A OF THE IT RULES. THUS, IN OUR CONSIDERED OPINIO N, THE ENDS OF JUSTICE WOULD MEET IF THE CASE IS RESTORED TO THE F ILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER ALLOWING DUE O PPORTUNITY OF HEARING TO THE ASSESSEE WITHOUT BEING PREJUDICED FR OM THE EARLIER ASSESSMENT ORDER AND THE FIRST APPELLATE ORDER. ACC ORDINGLY, GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. 7. SINCE WE HAVE RESTORED THE ENTIRE ASSESSMENT TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, OTHER GROUNDS OF THE ASSESSEE ON MERIT BECOME INFRUCTUOUS AND WE ARE NOT ADJUDICATING UPON THEM AS HAVING BECOME INFRUCTUOUS. KAILASH TIWARI ITA NO. 309/IND/2015 5 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 5 TH MAY, 2017. SD/- SD/- $) & & (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER MAY 05 , 2017 . DN/