Sh. Hardeep Singh, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 331/ASR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7856 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GHULAM MUSTAFA MUGHLOO LD
• Assessee Lawyers: J P BHATIA LD

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.331(ASR)/2016 ASSESSMENT YEAR:2011-12 SH. HARDEEP SINGH S/O CHANAN SINGH, VPO SATHIALA, TEHSIL BABA BAKALA, DIST: AMRITSAR. PAN:BNGPS-5850N VS. INCOME TAX OFFICER, WARD 4(3), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.P. BHATIA (LD. ADV.) RESPONDENT BY: SH. GHULAM MUSTAFA MUGHLOO (LD. DR ) DATE OF HEARING: 23.08.2017 DATE OF PRONOU NCEMENT: 24.08.2017 ORDER PER N. K. CHOUDHRY: THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE BY FEE LING AGGRIEVED AGAINST THE ORDER DT.28.01.2016 PASSED IN A PPEAL NO.60/2014-15 BY THE LD. CIT(A)-2, AMRITSAR FOR ASST. YEAR:2011-12, WHEREBY THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSE SSEE ON NON PROSECUTION. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL. 1. THAT THE LD. CIT(A)-2, AMRITSAR HAS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, GROSSLY ERRED IN LAW IN DISMISSING THE APPEAL OF THE ASSESSEE FOR THE WANT OF PRESENTATION, THE ORDE R PASSED BY THE CIT(A) IS ILLEGAL AND BAD IN LAW. ITA NO.331(ASR)/2016 ASST. YEAR: 2011-12 2 2. THAT THE UNDER SIGNED COUNSEL OF THE APPELLANT A PPEARED BEFORE THE LD. CIT(A) IN CONNECTION WITH THE OTHER CASES FIXED BEFORE HIM AND VERBALLY REQUESTED TO PLEASE KEEP THE FILE OF THE SAID CASE FOR FEW DAYS MORE WITH HIM BECAUSE OF THE ASSESSMENT OF SCRUTINY CASES WERE FI XED EARLIER BY THE DIFFERENT AUTHORITIES AND FILING OF THE INCOME TAX RETURNS OF THE CONSECUTIVE ASSESSMENT YEARS AND SUBMISSIONS OF THE CONCERNED C ASE WILL BE SUBMITTED IN FEW DAYS BUT THE LEARNED COMMISSIONER (APPEALS) ALSO VERBALLY ASSURED TO KEEP THE CASE IN WAITING BUT ISSUE THE ORDER IN HASTE OR OTHER REASONS AT THE BACK OF THE ASSESSEE WITHOUT GIVING THE SUFFICI ENT OPPORTUNITIES WHICH IS PROVIDED BY LAW. 3. THAT IN ANY CASE THE LEARNED CIT (A) SHOULD H AVE DECIDED THE APPEAL ON MERITS RATHER THAN DISMISSING THE APPEAL FOR THE WA NT OF PRESENTATION. 4. THAT THE WORTHY ITO ERRED IN LAW WITH THE FACTS WHILE MAKING THE ADDITION AS UNDER: (I) RS. 5077999-ADDITIONS IN ACCOUNT OF CASH CREDIT TH E BANKS ACCOUNTS (II) RS. 2483000-ADDITIONS IN THE ACCOUNT OF CREDITS (O THER THAN CASH CR.) AND THE SAME IS ILLEGAL AND BAD IN LAW. 5. THAT THE ADDITIONS MADE IN THE INCOME OF THE AS SESSEE UNDER THE DIFFERENT HEAD OF INCOME IS BAD IN LAW AND NOT BASE D ON ANY PLAUSIBLE REASONING AND LEGAL GROUNDS AND EVEN AGAINST THE AC TUAL FACTS AND CIRCUMSTANCES OF THE CASES AND HENCE THE IMPUGNED O RDER IS BAD IN LAW. 6. THAT THE WORTHY A.O. HAS MADE AD HOC ADDITION S CONTRARILY TO THE FACTS OF THE CASE AND JUST A VIEW TO RAISE HUGE DEMAND AG AINST THE ASSESSEE WHICH IS HIGHLY ARBITRARY, UNWARRANTED AND EXCESSIV E IN ALL RESPECTS AND EVEN HAS IGNORED THE ACTUAL FACTS AND CIRCUMSTANCES OF THE CASE AND CANNOT BE HOLD LEGAL AND PLAUSIBLE. 7. THAT THE WORTHY OFFICER HAS USED EXCESSIVE PO WER AND HAS INTENTIONALLY CLUB ALL THE CREDIT SIDE ENTRIES OF BANK ACCOUNTS T HOUGH MADE BY CASH OR CHAQUE / RTGS WHICH IS NOT SUPPORTED BY ANY COGENT REASON . 8. THAT THE DEMAND NOTICE SERVED ALONG WITH THE IMPUGNED ORDER, IS ILLEGAL HENCE UNENFORCEABLE SANS ANY DIRECTION GIVEN ON THE BODY OF ORDER FOR ITS ISSUANCE. 9. THAT THE INTEREST U/S 234A, B AND D HAS BEEN W RONGLY CHARGED WHEN THERE IS NO DIRECTION GIVEN TO THIS EFFECT ON THE B ODY OF ORDER. 10. THAT THE WORTHY A.O., HAS VERY WRONGLY INITIA TED THE PENALTY PROCEEDINGS U/S 271(1) (C). 11. THAT THE PRESENT APPEAL IS VERY WITHIN TIME AND WITHIN YOUR KIND JURISDICTIONS. 12. THAT THE APPELLANT HAS PAID THE REQUISITE F EE FOR THE FILING THE APPEAL BEFORE YOUR GOODSELF AND THE RECEIPT OF THE SAME A TTACHED HEREWITH. ITA NO.331(ASR)/2016 ASST. YEAR: 2011-12 3 13. THAT THE APPELLANT RESERVES THE RIGHT TO ADDU CE/SUBMIT ANY EVIDENCE AND ARGUMENTS AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD CHALL ENGED THE ASSESSMENT ORDER DATED 31.03.2014 BY FILING THE FIR ST APPEAL BEFORE THE LD. CIT(A), THEREAFTER, THE NOTICES HAVE BEEN ISSU ED ON VARIOUS OCCASIONS TO THE ASSESSEE/APPELLANT, HOWEVER, SOME OF THE NO TICES REMAINED UNCOMPLIED AND UNATTENDED AS NEITHER ANY BOD Y ATTENDED ON BEHALF OF THE ASSESSEE NOR ANY WRITTEN REPLY FILED. HOW EVER, IN SOME OF THE OCCASIONS, THE ASSESSEE FILED APPLICATION FOR ADJOURNME NT BUT THEREAFTER, DID NOT BOTHER TO APPEAR BEFORE THE LD. CIT(A), HENCE, IT WAS OBSERVED BY THE LD. CIT(A) THAT THE ASSESSEE IS NOT INTER ESTED IN PURSUING OF HIS APPEAL, THEREFORE, THE SAME IS LIABLE T O BE DISMISSED ON THIS GROUND ITSELF, AND FINALLY THE APPEAL OF THE ASSE SSEE WAS DISMISSED FOR WANT OF PRESENTATION . 4. FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE PREFERRED THE INSTANT APPEAL BY CHALLENGING THE ORDER BY RAISING VARIOUS GROUNDS AND SUBMITTED THAT ALTHOUGH TH E ASSESSEE ATTENDED THE PROCEEDINGS ON VARIOUS OCCASIONS AND SOUGHT ADJOURNMENT, HOWEVER, THE ASSESSEE WAS NOT BEING GRANTED AFFORDABLE OPPORTUNITIES AND THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR WANT OF PR ESENTATION AND THE LD. AR PRAYED FOR THE REMITTANCE OF THE CASE T O THE FILE OF LD. CIT(A) FOR DECIDING THE ISSUES AFRESH. ITA NO.331(ASR)/2016 ASST. YEAR: 2011-12 4 5. ON THE CONTRARY, THE LD. DR SUBMITTED THAT IT IS AN ABUSE OF THE PROCESS OF LAW BECAUSE EVEN AFTER AFFORDING SO MANY OPPOR TUNITIES, THE ASSESSEE DID NOT BOTHER TO APPEAR AND TO CO-OPERATE IN T HE APPELLATE PROCEEDINGS AND DELIBERATELY AVOIDED ADJUDICATION OF H IS APPEAL AND IN THAT CIRCUMSTANCES, THE LD. CIT(A) WAS HAVING NO OPTION E XCEPT TO DECIDE ON THE BASIS OF MATERIAL AVAILABLE ON RECORDS. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH WITH AFORESAID CIRCUMSTANCES OF THE CASE, AS IT REFLECTS FROM THE ORDER PASSED BY THE LD. CIT(A) THAT NOTICES WERE ISSUED BY THE LD. C IT(A) TO THE ASSESSEE BUT SOME OF THEM REMAINED UNCOMPLIED & UNATTENDE D BECAUSE NO ONE APPEARED ON BEHALF OF THE ASSESSEE AS WELL AS DID NOT FILE ANY REPLY. HOWEVER, IT IS ALSO CLEAR FROM THE ORDER PASSED B Y THE LD. CIT(A) THAT ON SOME OCCASIONS, THE ASSESSEE ATTENDED THE PROCEEDING S, HOWEVER, SOUGHT ADJOURNMENT. IN OUR CONSIDERED OPINION, THE LD. CIT(A) WAS RIGHT T O DECIDE THE CASE OF THE ASSESSEE IN THE ABSENCE OF ASSESSEE ITSELF, HOWEVER , WE REALIZE THAT THE LD. CIT(A) HAS NOT PASSED THE ORDER ON MERITS AND SIMPLY DISMISSED THE APPEAL FOR WANT OF PRESENTATION. WE ARE OF THE CONSIDERED OPINION THAT IN THE PECULIAR FACTS AND CIRCUMSTA NCES, IT WOULD BE PROPER TO REMIT BACK THE CASE TO THE FILE OF LD. CI T(A) TO DECIDE ITA NO.331(ASR)/2016 ASST. YEAR: 2011-12 5 AFRESH AFTER GIVING PROPER OPPORTUNITIES TO THE ASSESSEE AND ALSO TO CONSIDER RELEVANT CASE RECORDS FOR ADJUDICATION OF THE APP EAL AND THE ASSESSEE IS ALSO WARNED TO REGULARLY CO-OPERATE AND APPEAR IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), OTHERWI SE SHALL BE SUBJECTED TO THE ADVERSE INFERENCE. 7 . IN THE RESULT, THE ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.0 8.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHR Y) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:24.08.2017. /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