Ramesh Kumar Khandelwal, Bareilly V. Asstt.Commissioner of Income Tax, Bareilly

ITA 325/LKW/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78589 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: YOGESH AGRAWAL
• Keywords: Opportunity of being heard; Reassessment proceedings
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 325/LKW/2012 ASSESSMENT YEAR: 2005 - 06 RAMESH KUMAR KHANDELWAL BAREILLY V. ASSTT. CIT C IRCLE II, BAREILLY PAN: ANBPK0670Q (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. YOGESH AGRAWAL, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 02 0 7 2014 DATE OF PRONOUNCEMENT: 10 0 7 2014 O R D E R PER SUNIL KUMAR YADAV: T HIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER: - I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), BAREILLY (HERE - IN - AFTER REFERRED TO AS THE LD. CIT (A)'S] GROSSLY ERRED O N FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER PASSED U/S 148 OF THE I.T. ACT, 1961 IN THE PRESENT CASE AS THE ENTIRE FACTS HAD BEEN DISCLOSED IN THE RETURN OF INCOME AND NO NEW FACTS HAD COME INTO THE KNOWLEDGE OF THE DEPARTMENT TO VA LIDLY INITIATE THE REASSESSMENT PROCEEDINGS. II. THE REASONS RECORDED FOR REOPENING THE CASE ARE NOT RELEVANT OR GERMANE ENOUGH TO VALIDLY INITIATE REASSESSMENT PROCEEDINGS AND THUS AS THE REOPENING IS BASED ON SUCH REASONS MAY KINDLY BE ORDERED TO BE QUA SHED. III. THE INITIATION OF PROCEEDINGS U/S 148 FOR THE PRESENT YEAR IS BEYOND THE INTENT PURPOSE AND SCOPE OF THE PROVISIONS AS CONTAINED IN THE I.T. ACT, 1961 AND CONSEQUENTLY THE ENTIRE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : PROCEEDINGS OF ASSESSMENT FOR THE PRESENT YEAR ARE VOID - AB - INITI O AND AS SUCH THE ORDER OF ASSESSMENT MAY KINDLY BE ORDERED TO BE ANNULLED. IV. THE LD. CIT (A)'S FURTHER ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE LD. A.O. AND IN NOT PROVIDING ANY PROPER AND SUFFICIENT OPPORTUNITY TO THE APPELLANT TO HAVE ITS SAY OR MAKE NECESSARY COMPLIANCE OF THE REASONS RELIED UPON BY HIM WHILE PASSING THE PRESENT ORDER. WITHOUT PREJUDICE TO GROUNDS NO. I TO IV TAKEN ABOVE: - V. THE LD. CIT (A)'S ERRED ON FACTS AND IN LAW IN CONFORMING THE DISALLOWANCE OF RS. 17,04,960/ - MADE U/S 40(A)(IA) OF THE I.T. ACT, 1961 BY MERELY STATING THAT TAX HAS NOT BEEN DEDUCTED AND PAID AGAINST THE COMMISSION PAID WITHOUT APPRECIATING THAT WHEREVER APPLICABLE THE TAX HAS DULY BEEN DEDUCTED AND PAID AND THERE IS NO DEFAULT ON THE PART OF THE APPELLANT AND HENCE NO QUESTION OF ANY DISALLOWANCE. VI. IN CONFORMING THE ORDER OF THE ASSESSING OFFICER THE LD. CIT (A)'S FURTHER FAILED TO APPRECIATE THAT THE COMPLETE DETAILS REGARDING DEDUCTION OF TAX HAD ALREADY BEEN FILED DURING THE COURSE OF ORIG INAL ASSESSMENT PROCEEDINGS ITSELF AND HENCE THERE THE ADDITION MADE ON NOTIONS, CONJECTURES AND SURMISES IS LIABLE TO BE DELETED AND ASSESSMENT ITSELF IS LIABLE TO BE QUASHED. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE H AS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL EX - PARTE AGAINST THE ASSESSEE AND DISMISSED THE SAME. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION THAT THE L D. CIT(A) HAS DISMISSED THE APPEAL IN LIMINE WITHOUT ADJUDICATING THE ISSUES ON MERIT. IT WAS FURTHER SUBMITTED THAT UNDER THE INCOME - TAX ACT, THE LD. CIT(A) IS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF NONE IS APPEARED ON BEHALF OF THE ASSESSEE. SINCE THE LD. CIT(A) HAS NOT ADJUDICATED THE APPEAL ON MERIT, HIS ORDER MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION ON MERIT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : 3 . THE LD. D.R. HAS SIMPLY PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING CAREFULLY EXAM INED THE ORDER OF THE LD. CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE WITHOUT ADJUDI CATING THE ISSUES ON MERIT. SI NCE THE LD. CIT(A) IS REQUIRED TO ADJUDICATE THE APPEAL ON ME RIT EVEN IN THE ABSENCE OF THE ASSESSEE, THE ORDER DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE DOES NOT APPEARS TO BE SOUND AND VALID. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUD ICATE THE APPEAL AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE TO RE - ADJUDICATE THE ISSUES ON MERIT IN TERMS INDICATED ABOVE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.7.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH JU LY , 2014 JJ: 0207 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )