M/s Devgan Rice & General Mills, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 314/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8689 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-02-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 26-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: PADAM BAHL LD
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBE R AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.314(ASR)/2016 ASSESSMENT YEAR: 2004-05 M/S DEVGAN RICE & GENERAL MILLS, SANGRANA SAHIB, TARN TARAN ROAD, AMRITSAR. PAN:AAAFD-7425J VS. INCOME TAX OFFICER, WARD 3(1), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PADAM BAHL (LD. C. A) RESPONDENT BY: RAHUL DHAWAN (LD. D.R) DATE OF HEARING: 28.02.2017 DATE OF PRONOU NCEMENT: 30.03.2017 ORDER PER N. K. CHOUDHRY (JM): THIS INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-1, AMRITSAR, DATED 29.02.201 6, FOR ASST. YEAR: 2004-05. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEAL)-1, AMRITSAR HAS GROSSLY ERRED IN DISMISSING THE APPEAL EX-PARTE WITHOUT ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-1, AMRITSAR HAS FAILED TO APPRECIATE THAT THE AUTHORIZED REPRES ENTATIVE HAD REQUESTED FOR TIME DUE TO TIME BARRING ASSESSMENT W ORK UPTO 31.03.2016 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-1 AMRITSAR HAS GROSSLY ERRED IN NOT DECIDING THE APPEAL ON MER ITS OF THE CASE. ITA NO.314 (ASR)/2016 ASST. YEAR:200 4-05 2 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL)-1 AMRITSAR HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 13,01,717/- MADE BY INCOME TAX OFFICER, WARD 3(1), AMRITSAR ON ACCOU NT OF ALLEGED UNDERVALUATION OF CLOSING STOCK. 3. THE FACTUAL MATRIX OF THE CASE FOR THE DECISION OF INSTAN T APPEAL ARE AS UNDER: THAT THE FEELING AGGRIEVED BY THE ASST. ORDER PASSED BY THE ASSESSING OFFICER DATED 26.12.2008, THE ASSESSEE/APPELL ANT PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON NON-PROSECUTI ON BY HOLDING AS UNDER: 3. FURTHER IT IS EMERGING FROM FACTS AND CIRCUMSTANCES OF THE CASE THAT THE APPELLANT IS NOT CARING TO COMPLY WITH OPP ORTUNITY NOTICES ISSUED U/S 250(1) OF THE INCOME TAX ACT 1961. SI NOTICE DT. FIXATION DT. MODE OF SERVICE REMARKS NARRATING FATE 1. 13.06.2011 29.06.2011 SPEED POST REMAINED UNCOMP LIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED 2. 22.02.2013 13.03.2013 N/S COUNSEL FOR THE APPELL ANT FILLED APPLICATION FOR ADJ. CASE ADJOURNED TO 19.03.2013 3. 19.03.2013 REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 4. 04.02.2014 19.02.2014 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 5. 07.10.2014 15.10.2014 N/S COUNSEL FOR THE APPELL ANT ITA NO.314 (ASR)/2016 ASST. YEAR:200 4-05 3 FILLED APPLICATION FOR ADJ. CASE ADJOURNED TO 29.10.2014 6. 29.10.2014 COUNSEL FOR THE APPELLANT FILLED APPLICATION FOR ADJ. 7. 16.09.2015 24.09.205 SPEED POST COUNSEL FOR THE APPELLANT FILLED APPLICATION FOR ADJ. CASE ADJOURNED TO 13.10.2015 8. 13.10.2015 COUNSEL FOR THE APPELLANT FILLED APPLICATION FOR ADJ. CASE ADJOURNED TO 28.10.2015 9. 28.10.2015 REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 10. 04.11.2015 17.11.2015 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 11. 15.12.2015 31.12.2015 N/S REMAINED UNCOMPLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. 12. 08.01.2016 22.01.2016 SPEED POST REMAINED UNCOM PLIED & UNATTENDED, AS NEITHER ANYBODY ATTENDED NOR ANY WRITTEN REPLY FILED. UNDER THE CIRCUMSTANCES, I AM OF THE VIEW THAT ASSE SSEE IS NOT INTERESTED INN PURSUING OF THE PRESENT APPEAL AND T HE SAME IS LIABLE TO BE DISMISSED ON THIS GROUND ITSELF. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THE PRINCIPLE IS WELL EMBODIED IN THE WELL KNOWN DICTUM VIGIANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT. IT IS CLEAR FROM THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE ASSESSING OFFICER HAS WRITTEN A WELL REASONED ORD ER BASED ON EVIDENCE AND RIGHTLY MADE AN ADDITION OF RS.1 301717/- ON ACCOUNT OF UNDERVALUATION OF CLOSING STOCK OF BARDANA. THUS KEEPING IN VIEW OF THE GROUNDS OF APPEAL AND ASSESSMENT ORDER IT IS FOUND THAT THE ASSESSING OFFICERS DECISION IS CORRECT. HENCE THE APPEAL IS DISMISSED FOR WANT OF PRESENTATION AND ON MERIT. ITA NO.314 (ASR)/2016 ASST. YEAR:200 4-05 4 4. THEREAFTER, FEELING AGGRIEVED BY THE SAID DISMISSAL OF APPEAL BY THE LD. CIT(A), THE ASSESSEE PREFERRED THE INSTANT APPEA L ON THE GROUNDS THAT THE LD. CIT(A) GROSSLY ERRED IN DISMISSING THE APPEAL EX- PARTE WITHOUT ALLOWING REASONABLE OPPORTUNITY OF BEI NG HEARD AND FURTHER FAILED TO APPRECIATE THAT THE AR OF THE AUTH ORIZED REPRESENTATIVE HAD REQUESTED FOR TIME DUE TO TIME B ARRING ASSESSING WORK UPTO 31.03.2016 AND FURTHER THE CIT(A)-1 GROSSLY ERRED IN NOT DECIDING THE APPEAL ON MERITS OF THE CASE. FURTHER THE ASSESSEE SUBMITTED THAT LD. CIT(A) GROSSLY ERRED IN CONFIRMING T HE ADDITION OF RS.13,01,717/- MADE BY THE INCOME TAX OFFICER, WARD-3 (1), AMRITSAR ON ACCOUNT OF ALLEGED UNDER VALUATION OF CLOSING STOCK A ND THEREFORE, PRAYED FOR SETTING ASIDE THE ORDER PASSED BY THE LD. CI T(A). 5. ON THE CONTRARY, THE LD. DR ARGUED THAT IT SHEER W ASTAGE OF TIME AS IT REFLECTS FROM THE ORDER OF LD. CIT(A) THAT HE HA S GIVEN 12 OPPORTUNITIES BY SENDING NOTICES AS WELL AS ALLOWING ADJ OURNMENT ON VARIOUS GROUNDS RAISED BY THE ASSESSEE COUNSEL. HOWEVER, IN CO URSE ONCE THE CASE REMAINED UNCOMPLIED & UNATTENDED, BECAUSE O F NON APPEARANCE OF ANY ONE ON BEHALF OF THE ASSESSEE AND ALSO NON FILING OF ANY WRITTEN REPLY IN THEIR SUPPORT. THE LD. CIT(A) W AS CONSISTENT TO DISMISSED THE APPEAL, HOWEVER, WHILE DISMISSING THE APPEA L, THE LD. CIT(A) ALSO CONSIDERED THE MERITS OF THE CASE WHILE CONFIR MING THE ADDITION MADE BY THE ASSESSING OFFICER. ITA NO.314 (ASR)/2016 ASST. YEAR:200 4-05 5 6. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE, IT CLEARLY REFLECTS FROM THE ORDER PASSED BY THE LD. CIT(A) THAT SEVERAL OPPORTUNITIES HAVE BEEN OFFERED TO THE ASSESSEE T O DEFEND ITS CASE AND/OR TO FILE THEIR REPLY, HOWEVER, REASON BEST K NOWN TO THE ASSESSEE, THE ASSESSEE DID NOT CO-OPERATE IN THE PROCEEDINGS PENDING BEFORE THE LD. CIT(A) AS WELL AS FAILED TO PROSECUTE TH EIR CASE AND ALSO PREFERRED NOT TO FILE ANY WRITTEN REPLY OR SUBMISSION S, THEREFORE, THE LD. CIT(A) WAS CONSTRAINED TO DECIDE THE APPEAL EX-PART E. HOWEVER, FROM THE ORDER, IT REFLECTS THAT LD. CIT(A) DID NOT A PPLY HIS MIND INDEPENDENTLY IN CONSIDERING THE MERITS OF THE CASE WHIL E CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. IN OUR CONSID ERED OPINION, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, AS IT IS WELL SETTLED LAW THAT NO ONE CAN BE REMAINED UNHEARD AND I N ORDER TO GIVE REASONABLE OPPORTUNITIES OF BEING HEARD BY FOLLOWING THE PRINCIPLE OF NATURAL JUSTICE AND TO MAKE BALANCE OF CONVENIENCE, WE A RE CLEAR FROM THE MIND THAT ALTHOUGH THE ASSESSEE FAILED TO AVAIL THE OPPORTUNITIES IN PROPER AND EFFECTIVE MANNER DUE TO ITS OWN REASONS AND CIRCUMSTANCES AND ALSO WASTED THE COURTS TIME AND GOVT. RESOURCES, HOW EVER, IN THE INTEREST OF JUSTICE AND TO GIVE FAIR AND REASONABLE OP PORTUNITIES FOR ADJUDICATION OF APPEAL ON MERITS, WE FEEL IT APPROPRI ATE TO ALLOW THE APPEAL OF THE ASSESSEE BY REMANDING THE SAME TO THE LD. CIT(A) FOR DECIDING AFRESH ON MERITS BY GIVING PROPER OPPORTUNITI ES OF BEING HEARD ITA NO.314 (ASR)/2016 ASST. YEAR:200 4-05 6 TO THE RESPECTIVE PARTIES, BUT SUBJECT TO DEPOSITS OF RS.5, 000/- IN THE REVENUE/DEPARTMENT WITHIN 15 DAYS OF THE ORDER. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.03.2017. SD/- SD/- (T. S. KAPOOR) (N. K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30.03.2017 /PK/PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER