Shri Amrutraj Shivanand Nesari, Belgavi V. Income Tax Officer, Ward - 1(3), Belgavi

ITA 316/PAN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0635 (ITAT-PANAJI)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y V RAVIRAJ
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 316 /PAN /2017 ASSESSMENT Y EAR: 2008 - 09 SHRI AMRUTRAJ SHIVANAND NESARI, TMS NO. 1586, SUBHASH ROAD, SANKESHWAR, TAL : HUKKERI, DIST : BELGAUM 591313 PAN: ACGPN8664H VS. THE INCOME TAX OFFICER, WARD 1(3), BELGAUM (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI Y.V. RAVIRAJ (DR) DATE OF HEARING: 14 / 11 /201 8 DATE OF PRONOUNCEMENT: 28 / 12 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15.09.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) (FOR SHORT THE CIT(A) , GULBARGA, PERTAI NING TO THE ASSESSMENT YEAR 2008 - 09 , WHEREBY THE LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S 263 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. AGGRIEVED BY THE ORDER OF LD. CIT ( A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. BECAUSE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AS WELL AS ON FACTS BY CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSIN G OFFICER, WARD 1(3), BELGAUM. 2 ITA NO. 316 / PAN /2017 ASSESSMENT YEAR: 2008 - 09 2. BECAUSE, THE FOLLOWING OBSERVATIONS OF THE LEARNED CIT (APPEALS) IN THE ORDER ARE PERVERSE, ARBITRARY, AND MISLEADING, A) THE AO HAS RIGHTLY OBSERVED THAT ASSESSE HAD NOT SUBMITTED ANY PROOF OF HAVING RECEIVED GIFTS ON VARIOU S DATES AND JUST BECAUSE THERE ARE DRAWINGS IN FATHERS ACCOUNT SHOWING GIFT ON VARIOUS DATES AND JUST BECAUSE THERE ARE DRAWINGS IN FATHERS ACCOUNT, IT CANNOT BE ACCEPTED THAT THEY WERE GIVEN TO THE ASSESSEE. 3. LET US REPRODUCE THE PARA NO. 3.0 OF PAGE 2 O F THE CIT (APPEALS) ORDER AS MENTIONED BY THE AO, THE CAPITAL ACCOUNT SHOWING GIFT FROM FATHER WAS DRAWN ONLY ON 13.04.2010 DURING ASSESSMENT PROCEEDINGS AND AUDIT REPORT & FINANCIAL STATEMENT ON 04.09.2009 DO NOT MENTION THE SAME. THE GIFT DECLARATION FR OM THE FATHER IS ALSO EXECUTED ON 10.12.2010 I.E. DURING THE COURSE OF ASSESSMENT. THUS THE AO CLEARLY BROUGHT OUT THE FACTS AND ARGUMENTS IN HIS ORDER WHERE THE APPELLANT FILED VAGUE GROUNDS AND DID NOT PROVIDE ANY EVIDENCE OR MATERIAL SUBMISSIONS TO SUPP ORT HIS ARGUMENTS. 4. THAT THE APPELLANT WAS NOT PROVIDED WITH PROPER TIME TO ATTEND . ONLY 2 NOTICES WERE ISSUED AND THE GAP BETWEEN THE DATES BEING HARDLY 10 DAYS. ALSO, THE 2 ND HEARING POSTED WAS AT A PLACE VARY AWAY FROM THE PLACE OF THE ASSESSEE. AS SUC H, THE ASSESSEE HAS NOT BEEN GIVEN ENOUGH OPPORTUNITY AND AS SUCH BARRED NATURAL JUSTICE. 3. THIS APPEAL WAS FIXED FOR HEARING ON 15.11.2018. WHEN THE CASE WAS CALLED OUT FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. SINCE, THE ASSESSEE DID NOT APPEAR DESPITE SERVICE OF NOTICE, WE DECIDED TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL ON RECORD AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE (DR). ACCORDINGLY, WE ASKED THE LEARNED DR TO ARGUE ON BEHALF OF THE REVENUE. 3 ITA NO. 316 / PAN /2017 ASSESSMENT YEAR: 2008 - 09 4 . THE LEARNED DR RELYING ON THE ORDER PASSED BY THE LEARNED CIT (A) SUBMITTED THAT SINCE THE ASSESSEE HAS FAILED TO APPEAR AND PRESENT ITS CASE BEFORE THE LEARNED CIT(A) DESPITE SUFFICIENT OPPORTUNITY GRANTED, FOR PURSUING THE APPEAL, THE LEARNED CIT (A) HAS RIGHTLY PASSED THE EX - PARTE ORDER AND DISMISSED THE APPEAL. 5 . WE HAVE PERUSED THE MATERIAL ON RECORD. THE ONLY GRIEVANCE OF THE APPELLANT/ASSESSEE IS THAT THE LEARNED CIT (A) HAS DISMISSED THE APPEAL EX - PARTY WITHOUT GIVING REASONABLE OPPORTUNITY TO PURSUE ITS APPEAL. WE NOTI CE THAT THE LEARNED CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY APPLYING THE DECISION OF THE DELHI BENCH OF THE ITAT IN THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD (1991) 38 ITD 320 (DEL.) DATED 27 TH MAY, 1991 ON THE GROUND THAT THE ASSESSEE HAS FA ILED TO APPEAR ON 04.09 .2017 AND 13.09.2017. WE NOTICE THAT THE LEARNED CIT(A) HAS DISMISSED THE APPEAL FOR NON - PROSECUTION BY THE ASSESSEE. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX (CENTRAL) NAGPUR VS. PR E MKUMAR ARJUNDASS LU THRA (HUF) [2017] 297 CTR 614 (BOM.) HAS INTER ALIA HELD THAT THE LAW DOES NOT PERMIT THE CIT(A) TO DISMISS THE APPEAL FOR NON - PROSECUTION BY THE ASSESSEE. THE OPERATIVE PART OF THE SAID JUDGMENT READS AS UNDER: - 8. FROM THE AFORESAID PROVISIONS, IT IS VERY CLEAR ONCE AN APPEAL IS PREFERRED BEFORE THE CIT(A), THEN IN DISPOSING OF THE APPEAL, HE IS OBLIGED TO MAKE SUCH FURTHER INQUIRY THAT HE THINKS FIT OR DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO HIM AS FOU ND IN SECTION 250(4) OF THE ACT. FURTHER SECTION 250(6) OF THE ACT OBLIGES THE CIT(A) TO DISPOSE OF AN APPEAL IN WRITING AFTER STATING THE POINTS FOR DETERMINATION AND THEN RENDER A DECISION ON EACH OF THE POINTS WHICH ARISE FOR CONSIDERATION WITH REASONS IN SUPPORT. SECTION 251(1)(A) AND (B) OF THE ACT PROVIDE THAT WHILE DISPOSING OF APPEAL THE CIT(A) WOULD HAVE 4 ITA NO. 316 / PAN /2017 ASSESSMENT YEAR: 2008 - 09 THE POWER TO CONFIRM, REDUCE, ENHANCE OR ANNUL AN ASSESSMENT AND/OR PENALTY. BESIDES EXPLANATION TO SUB - SECTION (2) OF SECTION 251 OF THE ACT ALS O MAKES IT CLEAR THAT WHILE CONSIDERING THE APPEAL, THE CIT(A) WOULD BE ENTITLED TO CONSIDER AND DECIDE ANY ISSUE ARISING IN THE PROCEEDINGS BEFORE HIM IN APPEAL FILED FOR ITS CONSIDERATION, EVEN IF THE ISSUE IS NOT RAISED BY THE APPELLANT IN ITS APPEAL BE FORE THE CIT(A). THUS ONCE AN ASSESSEE FILES AN APPEAL UNDER SECTION 246A OF THE ACT, IT IS NOT OPEN TO HIM AS OF RIGHT TO WITHDRAW OR NOT PRESS THE APPEAL. IN FACT THE CIT(A) IS OBLIGED TO DISPOSE OF THE APPEAL ON MERITS. IN FACT WITH EFFECT FROM 1ST JUNE , 2001 THE POWER OF THE CIT(A) TO SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND RESTORE IT TO THE ASSESSING OFFICER FOR PASSING A FRESH ORDER STANDS WITHDRAWN. THEREFORE, IT WOULD BE NOTICED THAT THE POWERS OF THE CIT(A) IS CO - TERMINUS WITH THAT OF THE ASSESSING OFFICER I.E. HE CAN DO ALL THAT ASSESSING OFFICER COULD DO. THEREFORE JUST AS IT IS NOT OPEN TO THE ASSESSING OFFICER TO NOT COMPLETE THE ASSESSMENT BY ALLOWING THE ASSESSEE TO WITHDRAW ITS RETURN OF INCOME, IT IS NOT OPEN TO THE ASSESSEE IN APPE AL TO WITHDRAW AND/OR THE CIT(A) TO DISMISS THE APPEAL ON ACCOUNT OF NON - PROSECUTION OF THE APPEAL BY THE ASSESSEE. THIS IS AMPLY CLEAR FROM THE SECTION 251(1)(A) AND (B) AND EXPLANATION TO SECTION 251(2) OF THE ACT WHICH REQUIRES THE CIT(A) TO APPLY HIS M IND TO ALL THE ISSUES WHICH ARISE FROM THE IMPUGNED ORDER BEFORE HIM WHETHER OR NOT THE SAME HAS BEEN RAISED BY THE APPELLANT BEFORE HIM. ACCORDINGLY, THE LAW DOES NOT EMPOWER THE CIT(A) TO DISMISS THE APPEAL FOR NON - PROSECUTION AS IS EVIDENT FROM THE PROV ISIONS OF THE ACT. 6 . THE HONBLE SUPREME COURT IN THE CASE OF S.CHENNAPPA MUDALIAR (1969) 74 ITR 41 HAS HELD THAT DISMISSAL OF APPEAL FOR FAILURE OF APPELLANT TO APPEAR IS ULTRA VIRES . 7 . HENCE, IN OUR CONSIDERED VIEW, THE LD. CIT(A) HAS PASSED THE IMPUG NED ORDER IN CONTRAVENTION OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT AND THE HONBLE BOMBAY HIGH COURT IN THE AFORESAID 5 ITA NO. 316 / PAN /2017 ASSESSMENT YEAR: 2008 - 09 JUDGMENTS. WE THEREFORE, SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND REMIT THE APPEAL BACK TO THE LEARNED CIT(A) FOR DECI DING THE APPEAL AFRESH ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT/ASSESSEE. HOWEVER, WE DIRECT THE ASSESSEE NOT TO SEEK ADJOURNMENTS ON FRIVOLOUS GROUNDS DURING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) . I N THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008 - 2009 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED BY LISTING THE RESULT ON THE NOTICE BOARD OF THE BENCH UNDER RULE 34(4) OF THE APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER PANAJI ; DATED: 28 / 12 / 201 8 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , PANAJI / DR, ITAT, PANAJI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR ) / PS , PANAJI / ITAT, PANAJI