Kapil Sisodia, Bhilwara V. ITO, Ward-5, Bhilwara

ITA 341/JODH/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1932 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 27-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRISH MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH ES, SMC JODHPUR BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.341/JODH/2019 ASSESSMENT YEAR : 2016-17 SHRI KAPIL SISODIA C/O RAJENDRA JAIN ADVOCATE, 106, AKSHAY DEEP COMPLEX, 5TH B ROAD SARDARPURA, JODHPUR VS. THE ITO WARD-5, BHILWARA PAN NO: AMHPS3801J APPELLANT RESPONDENT ASSESSEE BY : SMT. RAKSHA BIRLA, C.A REVENUE BY : SHRI GIRISH MEHTA, JCIT DR DATE OF HEARING : 25/11/2019 DATE OF PRONOUNCEMENT : 25/11/2019 / ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT . 19/08/2019 OF LD. CIT(A)-2, AJMER. 2. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO. 1 RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A)IN VIOLATION OF PRINCIPL ES OF NATURAL JUSTICE. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E-FILED ITS RETURN OF INCOME ON 17/10/2016 DECLARING AN INCOME OF RS. 2,69,840/- LATE R ON THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 1,42,470/- UNDER SECTION 69C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS A CT)AND ANOTHER ADDITION OF RS. 76,000/- WAS MADE BY MAKING HE DISALLOWANCE ON ESTIMA TE BASIS OUT OF THE EXPENSES CLAIMED AT RS. 3,77,588/- IN THE PROFIT & LOSS ACCOUNT . 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER BY PASSING EX PARTE ORDER. THE LD. CIT(A) 2 MENTIONED THAT THE APPEAL WAS LAST FIXED FOR HEARING O N 19/08/2019, ON SAID DATE NOBODY ATTENDED NOR WRITTEN SUBMISSION HAD BEEN FILED. 5. NOW THE ASSESSEE IS IN APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE THEREFORE THE LD. CIT(A) WAS NOT JUST IFIED IN PASSING THE EXPARTE ORDER AND CONFIRMING ARBITRARY ADDITION MADE BY THE ASSESSING O FFICER. 7. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 8. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE IT IS NOTIC ED THAT THE LD. CIT(A) SIMPLY STATED THAT THE CASE WAS FIXED FOR HEARING LAST TIME ON 19/08/2019 BUT NOBODY ATTENDED HOWEVER IT WAS NOT MENTIONED NOWHERE IN THE IMPUGNED ORDER THAT THE NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLE D THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . 9. I, THEREFORE BY KEEPING IN VIEW THE PRINCIPLES OF NA TURAL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONAB LE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019) SD/- ( N.K. SAINI) VICE PRESIDENT AG DATE: 25/11/2019 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. THE CIT(A) 5. DR, ITAT, JODHPUR 6. GUARD FILE