Sri T Surya Vara Prasad., Vijayawada V. The ACIT, Ward-2(3), Vijayawada

ITA 322/VIZ/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2820 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 25-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBRATA SARKAR
• Assessee Lawyers: A SESHADRI
• Keywords: Bad and doubtful debts; Corroborative evidences; Condonation of delay; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.322/VIZAG/2007 ASSESSMENT YEAR : 2003-04 T. SURYA VARA PRASAD, VIJAYAWADA ACIT, WARD 2(3) VIJAYAWADA (APPELLANT) VS. (RESPONDENT) PAN NO.ADHPT3852D APPELLANT BY: SHRI A. SESHADRI, CA RESPONDENT BY: SHRI SUBRATA SARKAR, DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(A) ON VARIOUS GROUNDS WHICH ARE AS UNDER:- 1. THE LD. CIT(A), VIJAYAWADA ERRED IN HOLDING THAT TH E ASSESSING OFFICER WAS CORRECT IN COMPLETING THE ASSESSMENT UN DER SECTION 144 AND IN DISALLOWING THE BAD DEBTS, CHIT FUND BID LOS S AND INTEREST CLAIMED BY THE APPELLANT. 2. THE LD. CIT(A) FAILED TO ADDRESS THE SUBMISSIONS AN D OBJECTIONS OF THE APPELLANT IN THE MATTER OF INVALIDITY OF THE NO TICES ISSUED BY AFFIXTURE. 3. THE LD. CIT(A) IS NOT CORRECT IN HOLDING THAT THE A SSESSING OFFICER HAS NO INFORMATION WHATSOEVER ABOUT THE WHEREABOUTS OF THE APPELLANT AND THAT THE ASSESSING OFFICER HAD NO OTH ER ADDRESS OTHER THAN THE ONE MENTIONED IN THE RETURN OF INCOME. 4. THE LD. CIT(A) IS NOT CORRECT IN HOLDING THAT THE S ERVICE OF NOTICE UNDER SECTION 142 BY AFFIXTURE ON THE LAST KNOWN AD DRESS IS A PROPER SERVICE. 5. THE LD. CIT(A) IS NOT CORRECT IN IGNORING THE SUBMI SSION OF THE APPELLANT THAT THE DEMAND NOTICE SERVED BY AFFIXTUR E IS INVALID IN LAW. 6. THE LD. CIT(A) IS NOT CORRECT IN HOLDING THAT THE A PPELLANT FAILED TO SUBSTANTIATE THE CLAIM OF BAD DEBTS, BID LOSS AND I NTEREST. 7. THE LD. CIT(A) IS NOT CORRECT IN HOLDING THAT THE A PPELLANT FAILED TO PRODUCE SUPPORTING EVIDENCES LIKE BOOKS OF ACCOUNT AND OTHER DOCUMENTS DEMANDED BY THE ASSESSING OFFICER, EVEN D URING THE APPELLATE PROCEEDINGS. 2 8. THE LD. CIT(A) ERRED IN HOLDING THAT THERE WAS NO C OMPLIANCE OF STATUTORY NOTICES AND THEREFORE THE ASSESSING OFFIC ER WAS CORRECT IN COMPLETING THE ASSESSMENT UNDER SECTION 144. 9. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE FAILUR E OF THE APPELLANT TO RESPOND TO THE NOTICES UNDER SECTION 142 WAS NOT INTENTIONAL AND SUCH CIRCUMSTANCES WERE BEYOND THE CONTROL OF THE A PPELLANT AND ON SUCH OTHER GROUNDS, NOT INCONSISTENT WITH THE AB OVE, TO BE PLEADED AT THE TIME OF HEARING. 2. THIS APPEAL IS FILED LATE BY 6 DAYS AND THE ASSE SSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT. ON CAREFUL PERUSAL OF THIS APPLICATION, WE FIND VALID REASONS FOR THE DELAY IN FILING OF THE APPEAL. WE ACCORDINGLY CONDONE THE SAME. 3. ON MERIT, THE LD. COUNSEL FOR THE ASSESSEES HAS INVITED OUR ATTENTION TO CERTAIN FACTS THAT AT THE TIME OF THE ASSESSMENT PR OCEEDINGS, THE ASSESSEE WAS PROSECUTED AND MOST OF THE TIMES HE WAS PUT BEH IND THE BARS AND FOR THAT REASONS HE COULD NOT APPEAR BEFORE THE A.O. NO R COULD HE PROSECUTE HIS CASE BEFORE HIM AND THE ASSESSING OFFICER HAS PASSE D AN ORDER U/S144 OF THE ACT. THE ASSESSEE HAD FILED AN APPEAL BEFORE THE C IT(A), IN WHICH ADDRESS OF HIS WORK PLACE WAS GIVEN BUT LATER ON THE WORK PLAC E WAS ALSO OCCUPIED BY THE MONEY LENDERS AND HE HAD TO RUN ONE PLACE TO OT HER. SINCE THE NOTICE COULD NOT BE SERVED UPON HIM, HE COULD NOT MAKE HIS PROPER REPRESENTATION BEFORE THE CIT(A) AND CIT(A) HAS CONFIRMED THE ORDE R OF THE A.O. PASSED U/S 144 OF THE ACT. 4. IN SUPPORT OF HIS CONTENTIONS ASSESSEE HAS FILED AN AFFIDAVIT AND ALSO AN AFFIDAVIT OF HIS CHARTERED ACCOUNTANT IN WHICH T HE C.A. HAS DEPOSED THAT HE HAD BROUGHT THESE FACTS TO THE NOTICE OF THE ASS ESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEES FURTHER CONTENDED THAT IN THE LIGHT OF THESE FACTS ASSESSEE SHOULD BE AFFORDED ONE MORE OPPORTUNITY TO PROSECUTE HIS CASE BEFORE THE A.O. 5. THE LD. D.R. STRONGLY OPPOSED THE CONTENTIONS OF THE ASSESSEES. 6. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF RECORD, WE FIND THAT ON ACCOUNT OF INCARCERATION OF THE ASSESSEES, HE COULD 3 NOT PROPERLY PROSECUTE HIS CASE BEFORE THE A.O. HE HAS ALSO GIVEN A VALID REASON IN HIS AFFIDAVIT FOR NON-PROSECUTING THE APP EAL BEFORE THE CIT(A). ON PERUSAL OF THE RECORD, WE ARE OF THE VIEW THAT ASSE SSEE HAS ALREADY SUFFERED A LOT ON ACCOUNT OF VARIOUS COMPLAINTS AND IN THE INT EREST OF JUSTICE PROPER OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEES. W E THEREFORE, SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND RESTORE THE MATT ER TO THE FILE OF THE A.O. WITH A DIRECTION TO ADJUDICATE THE IMPUGNED ISSUES ON WHICH ADDITIONS ARE MADE AFTER AFFORDING AN OPPORTUNITY BEING HEARD TO THE ASSESSEES. WE HAVE ALSO DIRECTED THE ASSESSEE THAT THIS TIME HE WILL C OOPERATE THE ASSESSING OFFICER AND PLACE ALL RELEVANT EVIDENCES IN SUPPORT OF HIS CONTENTION AND PROSECUTE HIS CASE PROPERLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 3.12.2009 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 3 RD DECEMBER, 2009 COPY TO 1 T.S.V. PRASAD, C/O A. NANCHARAIAH, D.NO.29-9-3, G OVINDARAJULU NAIDU STREET, OPP. SRIDEVI EYE HOSPITAL, SURYARAOPET, VIJ AYAWADA-520 002 2 THE ITO, WARD-2(3), CENTRAL REVENUE BUILDINGS, VI JAYAWADA-520 002 3 THE CIT, VIJAYAWADA 4 THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM