Laiju Thomas, Hyderabad V. ITO, Hyderabad

ITA 338/HYD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3219 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-05-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E S NAGENDRA PRASAD
• Assessee Lawyers: A V RAGHURAM
• Keywords: Opportunity of being heard; Opportunity of cross examination; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMEBR ITA NO.338/HYD/2010 ASSTT. YEAR 2005-06 LAIJU THOMAS NALLAKUNTA (PAN NO. ACAPL 5249 A) V/S. ITO WARD 12(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V. RAGHURAM RESPONDENT BY : SHRI E.S. NAGE3NDRA PRASAD, DR O R D E R PER SHRI G.C. GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-0 6 IS DIRECTED AGAINST THE ORDER OF THE CIT (A). 2. THE EFFECTIVE GROUND OF APPEAL OF THE ASSESSEE IS GROU ND OF APPEAL NO.2 WHICH IS REPRODUCED HEREUNDER: '2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN PASSING ORDER ON 31-12-2009 WITHOUT PROVID ING PROPER OPPORTUNITY. THE LEARNED COMMISSIONER OF IN COME- TAX (APPEALS) HAVING ADJOURNED THE CASE TO 12-1-201 0 SHOULD NOT HAVE DECIDED THE APPEAL ON 31-12-2009 WI THOUT PROVIDING PROPER OPPORTUNITY'. ITA NO.338/HYD/2010 SHRI LAIJU THOMAS, HYDERABAD. 2 3. THE ASSESSEE HAS REQUESTED FOR ADMISSION OF THE FOLLOWIN G ADDITIONAL GROUND OF APPEAL: 'THE LEARNED CIT (A) FAILED TO APPRECIATE THE FACT THAT THE MOU WHICH IS RELIED UPON IS COLLECTED BEHIND TH E BACK OF THE ASSESSEE AND NO OPPORTUNITY OF CROSS EXAMINATION IS ALLOWED AND THEREBY ERRED IN CONFORMING THE ADDITION'. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSING OFFICER AND THE CIT (A) HAS PASSED THE ASSESSMENT OR DER/ APPELLATE ORDER WITHOUT PROVIDING PROPER OPPORTUNIT Y TO THE ASSESSEE. HE SUBMITTED THAT THE CIT (A) HAS ADJOURNED THE APPEAL TO 12-01-2010 AND HAS DECIDED THE APPEAL ON 31-12-2009, WHICH IS NOT PERMISSIBLE. THE LEARNED COUNSEL SUBMITTED THAT THE MOU RELIED UPO N BY THE REVENUE AUTHORITIES WAS COLLECTED AT THE BACK OF THE ASSE SSEE AND NO OPPORTUNITY FOR CROSS EXAMINATION WAS PROVIDED TO THE ASSESSEE AND THEREFORE, THE ADDITION HAS BEEN WRONGLY CONFIRMED BY THE CIT (A). 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMIT TED THAT PROPER OPPORTUNITY WAS ALLOWED TO THE ASSESSEE BY THE ASSE SSING OFFICER AS WELL AS THE CIT (A). HE SUBMITTED THAT ON THE PAPER BOOK FILED BY THE ASSESSEE, THE CIT (A) HAS CALLED FOR COMMENT S OF THE ASSESSING OFFICER AND THE SAME WERE CONSIDERED BY THE CIT ( A) WHILE DECIDING THE APPEAL AND THE CIT (A) HAS PASSED A WELL R EASONED SPEAKING ORDER. ITA NO.338/HYD/2010 SHRI LAIJU THOMAS, HYDERABAD. 3 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION. IN THE FACTS O F THE CASE WE FIND THAT THE SUBMISSION OF THE ASSESSEE THAT THE CIT (A) HAS ADJOURNED THE CASE ON 12-01-2010 AND HAS PASSED THE APPE LLATE ORDER PRIOR TO THAT DATE COULD NOT BE CONTROVERTED. MOREOVE R, THE ASSESSEE HAS TO BE ALLOWED OPPORTUNITY REGARDING THE EVIDENCE COLLECTED AT ITS BACK. IN THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDER OF THE REVENU E AUTHORITIES TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO P ASS A DE NOVO ASSESSMENT ORDER IN ACCORDANCE WITH THE LAW AFTER PROVIDIN G REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO COOPERATE IN THE MATTER OF FINALIZATION OF A SSESSMENT WITH THE DEPARTMENT. WE DIRECT ACCORDINGLY. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 04-06-2010. SD/- SD/- (CHANDRA POOJARI) (G.C. GUPTA) ACCOUNTANT MEMBER VICE-PRESIDENT PVV/SPS DATE:4TH JUNE, 2010. COPY FORWARDED TO: 1. SHRI LAIJU THOMAS, C/O SRI B. NAGESH, CA, 2-2-1144 /11/5 NEAR HANUMAN TEMPLE, NEW NALLAKUNTA, HYDERABAD 500 044 2. THE ITO WARD-12(1) HYDERABAD 3. THE COMMISSIONER OF INCOME-TAX (APPEALS) II, HYDERABA D. 4. COMMISSIONER OF INCOME-TAX-I, HYDERABAD 5 THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD.