SHRI BHAWANI PRASAD AGRAWAL, JHUNJHUNU V. INCOME TAX OFFICER, WARD-1, JHUNJHUNU

ITA 315/JPR/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5278 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 07-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 147; 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HE-B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 315/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2015-16 SHRI BHAWANI PRASAD AGARWAL, ANAND KUNJ, KISAN COLONY, JHUNJHUNU CUKE VS. THE INCOME TAX OFFICER, WARD-1, JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABEPA2636D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. C. JAIN (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A. S. NEHRA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 22/05/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-4, JAIPUR DATED 30.01.2019 WHEREIN THE ASSESSEE HAS TA KEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LEARNED ASSESSING OFFICER HAD ERRED AT LAW AS WELL AS ON FACTS IN DISMISSING THE APPEAL DESPITE ADMITTING TH AT ON THE DATE OF HEARING I.E. 22.01.2019 AN ADJOURNMENT APPLICATION WAS FILED. THE LEARNED CIT(A) FURTHER ERRED IN NOT ADJUDICATING AN Y OF THE GROUNDS OF APPEAL ALSO. 2. THAT THE LEARNED ASSESSING OFFICER HAD ERRED AT LAW AS WELL AS ON FACTS IN REJECTING THE OBJECTIONS AND RESORTED TO C OMPLETE THE ASSESSMENT U/S 148 READ WITH SECTION 147 NOT ON HIS OWN BELIEF BUT ON THE BORROWED BELIEF. ITA NO. 315/JP/2019 SHRI BHAWANI PRASAD AGARWAL, JHUNJHUNU VS. ITO , JHUNJHUNU 2 3. THAT THE LEARNED ASSESSING OFFICER HAD ERRED AT LAW AS WELL AS ON FACTS IN TAKING THE LONG TERM CAPITAL GAIN ON SALE OF SHARES EXEMPT U/S 10(38) AS TAXABLE AND THEREBY FURTHER ERRED IN MAKI NG ADDITION OF RS. 1,30,45,679/- TO THE INCOME U/S 68 OF THE IT ACT. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE APP EAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE LD. CIT(A) EX-PARTY QUA THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE HAS MOVED ADJOURNMENT APPLICATION S BEFORE THE LD. CIT(A) ON 02.01.2019 AND THEREAFTER ON 22.01.2019 STATING THE REIN THAT THE AUTHORIZED REPRESENTATIVE IS NOT KEEPING GOOD HEALTH BUT SUFFE RING FROM ILLNESS AND THEREFORE, THE CASE MAY BE ADJOURNED. THE LD. CIT(A ) HAD ACCEPTED THE ADJOURNMENT APPLICATION FILED ON 02.01.2019 AND THE REAFTER THE MATTER WAS ADJOURNED ON 22.01.2019. HOWEVER, IN RESPECT OF AD JOURNMENT APPLICATION FILED ON 22.01.2019, NEITHER THE APPLICATION WAS REJECTED NOR ANY COMMUNICATION WAS GIVEN EXCEPT THAT THE AUTHORIZED REPRESENTATIVE S ASSISTANT WAS ASKED TO FILE THE APPLICATION IN HIS OFFICE WHICH WAS DONE B Y HIM. IT WAS SUBMITTED THAT FILING OF APPLICATION SEEKING ADJOURNMENT CLEARLY I NDICATES THE COMPLIANCE ON THE DATE OF HEARING ON 22.01.2019 BEFORE THE CIT(A) , HOWEVER, LD. CIT(A) IN PARA 5 OF HIS ORDER HAS STATED THAT THE ASSESSEE HA S FILED ADJOURNMENT APPLICATION WITH FRIVOLOUS REASONS. IT WAS SUBMITTE D THAT LD. CIT(A) HAD CONCLUDED HIMSELF THAT THE REASONS GIVEN IN THE ADJ OURNMENT APPLICATION ARE FRIVOLOUS WITHOUT HAVING ANY EVIDENCE TO STATE HOW THE SAME ARE FRIVOLOUS OR THE REASONS SPECIFIED THEREIN ARE WRONG. IT IS SUBM ITTED THAT AR WAS SUFFERING FROM VARIOUS DISEASES AND WAS UNDERGOING TREATMENT WITH DIFFERENT DOCTORS IN DIFFERENT HOSPITALS AND IN SUPPORT OF IT, COPIES OF THE MEDICAL PRESCRIPTIONS ARE PLACED ON RECORD AND PERUSAL OF THESE DOCUMENTS IND ICATE THAT RIGHT FROM 28 TH DEC, 2018 TILL DATE, THE ARS TREATMENT IS GOING ON AND THE CONDITION WAS SEVERE TILL 1 ST FEB, 2019. IT WAS SUBMITTED THAT THE CONCLUSION DR AWN BY THE CIT(A) OF GIVING FRIVOLOUS REASONS IS TOTALLY INCOR RECT AND WRONG AND IS BEING ITA NO. 315/JP/2019 SHRI BHAWANI PRASAD AGARWAL, JHUNJHUNU VS. ITO , JHUNJHUNU 3 BASED UPON HIS OWN IMAGINATION WHICH AS PER POWERS GIVEN UNDER THE ACT TO THE CIT(A) AS TO DECIDE THE APPEAL IS TOTALLY UNJUS TIFIED AND INCORRECT AND AGAINST THE STATUTORY PROVISIONS OF THE LAW. FURTHE R, RELIANCE WAS PLACED ON THE CO-ORDINATE BENCH DECISION IN CASE OF SWATI PAWA VS . DCIT (ITA NO. 3098/DEL/2016 VIDE ORDER DATED 05.02.2019), RAVI RAMNANI VS. ITO, TONK (ITA NO. 220/JP/2018 VIDE ORDER DATED 20.06.2018) AND OM PRAKASH SAINI VS. ITO, JAIPUR (ITA NO. 114/JP/2018-19 VIDE ORDER DATED 20.03.2019 ). IT WAS ACCORDINGLY SUBMITTED THAT GIVEN THAT THE APPEAL HA S NOT BEEN DECIDED ON MERITS BY THE LD CIT(A), THE SAME MAY KINDLY BE RES TORED TO FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS. 3. THE LD. DR IS HEARD WHO REFERRED TO THE ORDER O F LD. CIT(A) AND SUBMITTED THAT AS MANY AS 5 OPPORTUNITIES WERE GIVE N TO THE ASSESSEE WHICH HAVE EITHER NOT BEEN COMPLIED WITH OR THE ASSESSEE HAS FILED ADJOURNMENT LETTERS WITH FRIVOLOUS REASONS AND THEREFORE, THE L D CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL. AT THE SAME TIME, HE FAIRLY SUBMITTED THAT SINCE THE APPEAL HAS NOT BEEN DECIDED ON MERITS, THE REVENUE HAS NO OBJECTION WHERE THE MATTER IS SET-ASIDE TO THE FILE OF THE LD CIT(A ). 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE MATERIAL AVAILABLE ON RECORD. IT IS NO DOUBT TRUE THAT THE L D. CIT(A) HAS GRANTED AS MANY AS FIVE OPPORTUNITIES TO THE ASSESSEE, AT THE SAME TIME, THE ASSESSEE HAS MOVED THE ADJOURNMENT APPLICATIONS AND THE LD. CIT( A) HAS GRANTED THE ADJOURNMENT EXCEPT IN RESPECT OF MATTER LISTED ON 2 2.01.2019 WHEREIN THE AR HAS GIVEN THE REASONS FOR NON ATTENDANCE ON ACCOUNT OF ILL HEALTH AND GOING TO DELHI FOR MEDICAL TREATMENT AS ADVISED BY THE DOCTO R. WE FIND THAT NON- APPEARANCE ON ACCOUNT OF MEDICAL GROUND IS A REASON ABLE CAUSE FOR NON APPEARANCE ON PART OF THE AUTHORIZED REPRESENTATIVE AND THEREFORE, THE ASSESSEE DESERVES ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE LD. ITA NO. 315/JP/2019 SHRI BHAWANI PRASAD AGARWAL, JHUNJHUNU VS. ITO , JHUNJHUNU 4 CIT(A). IN VIEW OF THE SAME AND GIVEN THAT THE MAT TER HAS NOT BEEN DECIDED ON MERITS, WE HEREBY SET ASIDE THE MATTER TO THE FI LE OF LD. CIT(A) WHO SHALL DECIDE THE APPEAL ON MERITS AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 22/05/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/05/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BHAWANI PRASAD AGARWAL, JHUNJHU NU 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-1, JHUNJHUNU 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 315/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR