SHRI RAJESH KRISHNAGOPAL LAKHOTIA, Nagpur V. I.T.O. WARD -4(2), Nagpur

ITA 335/NAG/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2161 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 ITA NO. 335/NAG/2016 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 3 35 /NAG/2016. ASSESSMENT YEAR : 200 9 - 10 . RAJESH KRISHNAGOPAL LAKHOTIA, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 4(2), NAGPUR. PAN AAIPL1467E. APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SMT. AGNES P. THOMAS. DATE OF HEARING : 08 - 07 - 2016 DATE OF PRONOUNCEMENT : 8 TH JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - 4, NAGPUR DATED 09 - 02 - 2016 AND PERTAINS TO ASSESSMENT YEAR 200 9 - 10 . THE GROUNDS OF APPEAL READ AS UNDER : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND FACT IN DISMISSING THE APPEAL, IN AS MUCH AS NO PROPER OPPORTUNITY OF BEING HEARD WAS ALLOWED. THE APPELLATE ORDER PASSED U/S 250 BE SET ASIDE. 2. THAT WITHOUT PREJUDICE TO ABOVE THE LEARNED CIT APPEAL GROSSLY ERRED IN CONFIRMING THE ADDITIONS WITHOUT TAK ING INTO CONSIDERATION THE MERITS OF THE CLAIMS AND WITHOUT TAKING INTO CONSIDERATION FULL FACTS OF THE CASE AND EVIDENCE AND DOCUMENTS FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLATE ORDER BE KINDLY SET - ASIDE AND APPELLATE AUTHORITY BE KINDLY DIRECTED TO DECIDE THE APPEAL ON MERITS. 3. THAT WITHOUT PREJUDICE TO THE ABOVE ADDITION MADE AT RS.212055/ - TO THE HOUSE PROPERTY INCOME ON ACCOUNT OF DISALLOWANCE OF INTEREST BE DELETED. 4. THAT THE ABOVE ADDITION OF RS.212055/ - KINDLY MODIFIED TAKING INTO CONSIDERATION FULL FACTS OF THE CASE. 2 ITA NO. 335/NAG/2016 5. THAT THE CLAIM OF EXPENSES AT RS.28414 AS PER DETAILS OUGHT TO HAVE BEEN ALLOWED AS THE SAME WERE INCURRED FOR EARNING THE INCOME. 6. THAT THE ASSESSING OFFICER GROSSLY ERRED IN DISALLOWING DEFICIT IN INTEREST ACCOU NT T RS.70797/ - ON ACCOUNT OF INTEREST RECEIVED AND PAID IT BE ALLOWED. 2. I HAVE HEARD THE LEARNED D.R. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OPINION THE ISSUE CAN BE DISPOSED OF BY HEARING THE LEARNED D.R. 3. IN THIS CASE THE LEARNED CIT(APPEALS) HAS NOTED THAT COUPLE OF NOTICES WERE SENT TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE. HENCE THE LEARNED CIT(APPEALS) HAS DISMISSED THE ASSESSEES APPEAL WITHOUT PASSING A SPEAKING ORDER. SECTION 251 OF THE I.T. ACT WHICH CONTAINS THE POWERS OF THE CIT(APPEALS) NO WHERE PROVIDES THAT THE CIT(APPEALS) IS EMPOWERED TO DISMISS THE APPEAL FOR NON PROSECUTION AND NOT PASS A SPEAKING ORDER ON THE MERITS OF THE CASE. AS A MATTER OF FACT HONBLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED THAT EVEN THE ITAT CANNOT PASS AN ORDER BY DISMISSING THE APPEAL FOR NON PROSECUTION WITHOUT PASSING AN ORDER ON MERITS OF THE CASE. I FURTHER FIND THAT HONBLE APEX COURT IN THE CASE OF SAHARA INDIA (FIRM) 300 ITR 403 HAS HELD THAT EVEN ADMINISTRATIVE ORDER S HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. CONSIDERING THE PRESENT DECISION OF THE CIT(APPEALS) ON THE ANVIL OF AFORESAID DISCUSSION AND PRE CEDENT , I FIND THAT INTEREST OF JUSTICE DEMANDS THAT THE ISSUE IN THIS APPEAL SHOULD BE REMITTED TO THE FILE OF THE LEARNED CIT(APPEALS). ACCORDINGLY THE ISSUE IS REMITTED TO THE FILE OF LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) IS DIRECTED TO PASS A SPEAKING ORDER ON THE MERITS OF THE ISSUE IN THIS CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF B EING HEARD. THE ASSESSEE IS ALSO DIRECTED TO APPEA R BEFORE THE LEARNED CIT(APPEALS) SUO MOTO WITHIN 30 DAYS AFTER RECEIVING THIS ORDER TO CANVASS THE APPEAL. 3 ITA NO. 335/NAG/2016 4. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: JULY, 2016. COPY FORWARDED TO : 1. SHRI RAJESH KRISHNAGOPAL LAKHOTIA, ASHIRWAD ENTERPRISES, NEAR BUS DEPOT, GHAT ROAD, NAGPUR - 440018. 2. I.T.O., WARD - 4( 2 ), NAGPUR. 3. C.I.T. - , NAGPUR. 4. CIT(APPEALS), - 4, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.