Sunil Rameshchandra Bagadiya, Hingoli V. ITO, Ward 1(4), Parbhani

ITA 345/PUN/2013

• Counselvise Citation: 34524514 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Keywords: Opportunity of being heard; Right to appeal
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 345 /PN/20 1 3 ASSESSMENT YEAR : 200 7 - 08 SUNIL RAMESHCHANDRA BAGADIYA, INDU STRIAL AREA, AKOLA ROAD, HINGOLI VS. ITO, WARD 1(4), PARBHANI (APPELLANT) (RESPONDENT) PAN NO. AALPB1150F APPELLANT BY: SHRI MANOJ SHARMA RESPONDENT BY: SHRI P.S. NAIK DATE OF HEARING : 15 - 0 9 - 2014 DATE OF PRONOUNCEMENT : 16 - 0 9 - 2014 ORD ER PER R.S . PADVEKAR , JM : - THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE INCOME TAX OFFICER, WARD - 1(4), PARBHANI (IN SHORT THE ASSESSING OFFICER) DATED 19 - 12 - 2012 FOR THE A.Y. 2007 - 08. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND IN THE APPEAL: 1. THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN ADDITION OF SUPPRESSION OF YIELD OF COTTON OF RS.5,79,100/ - AND DISALLOWANCE OF EXPENSES OF RS.22,723/ - AND THE ASSESSING OFFICER BY NOT APPRECIATING THE EVIDENCE PRODUC ED BEFORE HIM AS WELL BY NOT PERMITTING THE REASONABLE TIME OPPORTUNITY OF PRODUCTION ON ADDITIONAL REQUIRED EVIDENCES FOR HIS SATISFACTION. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ACTION OF THE AUTHORITIES IS NOT JUSTIFIED. 2. IN THIS CA SE THE ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED ON 31 - 12 - 2009 U/S. 143(3) COMPUTING THE TOTAL INCOME OF RS.5,30,650/ - . SUBSEQUENTLY, THE LD. COMMISSIONER OF THE INCOME TAX, AURANGABD (IN SHORT THE LD. COMMISSIONER) BY EXERCISING HIS POWERS U/S. 263 OF THE INCOME - TAX ACT SET ASIDE THE ASSESSMENT ORDER VIDE HIS ORDER DATED 21 - 03 - 2012 WITH THE FOLLOWING DIRECTIONS: 2 ITA NO. 345 /PN/2013, SUNIL RAMESHCHANDRA BAGADIYA, HINGOLI 8. I HAVE ALSO CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE OPINION THAT IT WOULD BE IN THE INTEREST OF JUSTICE TO THE SET - ASIDE THE ISSUE MENTIONED IN PARA 2 HEREINABOVE TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE THE ISSUES AFRESH, AFTER EXAMINING BOOKS OF ACCOUNTS OF THE ASSESSEE AND WHILE DOING SO YIELD OF IDENTICAL TYPE OF BUSINESS IN HEREBY AREA SHOULD BE TAKEN INTO ACCOUNT. THE ASSESSMENT ORDER SHOULD BE PASSED AFTER MAKING PROPER VERIFICATION AND CONSIDERING HIS SUBMISSIONS AND ALSO AFTER AFFORDING HIM A REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE ASSESSEE DID NOT CHALLENGE THE ORDER PASSED BY THE LD. COMMISSIONER U/S. 263 FOR THE A.Y. 2007 - 08 DATED 21 - 03 - 2012. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AS PER THE DIRECTIONS OF THE LD. COMMISSIONER VIDE ORDER U/S. 143(3) R.W.S. 263 OF THE I.T. ACT DATED 19 - 12 - 2012 AND D ETERMINED THE TOTAL INCOME AT RS.11,32,471/ - . THE ASSESSEE DID NOT CHALLENGE THE ASSESSMENT ORDER BEFORE THE LD. CIT(A) AS PER THE PROVISIONS OF SEC.246 A(1) OF THE ACT BUT HAS DIRECTLY FILED THE APPEAL CHALLENGING THE A SSESSMENT ORDER IN THE TRIBUNAL. THE LD. DR TOOK THE PRELIMINARY OBJECTION THAT THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AS PER THE PROVISIONS OF SEC. 2 5 3 OF THE ACT. THE ASSESSMENT ORDER PASSED IN COMPLIANCE WITH THE DIRECTIONS GIVEN BY THE LD. COMMISSIONER U/S. 263 CANNOT BE DIRECTLY CHALLENGED BEFORE THE TRIBUNAL AND THE PROPER COURSE OF ACTION IS TO CHALLENGE THE SAME BY FILING THE APPEAL BEFORE THE LD. CIT(A) U/S. 246A(1) OF THE ACT. THE LD. DR SUBMITS THAT AS THE APPEAL IS NOT MAINTAINA BLE THE SAME MAY BE DISMISSED. WE HAVE ALSO HEARD THE LD. COUNSEL. HE SUBMITS THAT THE ORDER PASSED BY THE LD. COMMISSIONER U/S. 263 OF THE ACT DATED 21 - 03 - 2012 WAS NOT CHALLENGED . S UBSEQUENTLY THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AS PER THE D IRECTIONS OF THE LD. COMMISSIONER IN THE ORDER PASSED U/S. 263 AND THE ASSESSEE HAS NOT FILED THE APPEAL BEFORE THE LD. CIT(A) AND NOW HAS DIRECTLY CHALLENGED THE SAME BEFORE THE TRIBUNAL. 3 ITA NO. 345 /PN/2013, SUNIL RAMESHCHANDRA BAGADIYA, HINGOLI 4. IN OUR OPINION THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAI NABLE AS IT IS NOT AS PER THE PROVISIONS OF LAW. IN THE INCOME TAX ACT, RIGHT OF APPEAL GIVEN TO THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) BUT FIRST APPEAL LIES TO THE CIT(A) U/S. 246A(1) OF THE ACT EXCEPT IN TH E SITUATION WHERE AN ORDER IS PASSED IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL (DRP). AS PER THE PROVISIONS OF SEC. 253 OF THE ACT ONLY THE ORDER PASSED BY THE LD. COMMISSIONER U/S. 250 OF THE ACT CAN BE CHALLENGED. AS THE APPEAL FIL ED BY THE ASSESSEE IS NOT AS PER THE PROVISIONS OF SEC. 253 OF THE ACT WE, ACCORDINGLY, DISMISS THE SAME AS NOT MAINTAINABLE. THE ASSESSEE IS AT LIBERTY TO FILE THE APPEAL BEFORE THE LD. CIT(A) AS PER THE PROVISIONS OF LAW. WE ARE NOT EXPRESS ING ANYTHING ON MERIT . 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 16 - 0 9 - 2014 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DA TED : 16 TH SEPTEMBER, 2014 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 4 THE I.T.O., WARD - 1(4), PARBHANI THE CIT, AURANGABAD 5 THE DR, ITAT, B BENCH, PUNE. 6 GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE