Ranjit Singh,Prop.M/s Kishan Ghar, Varanasi V. ITO, Varanasi

ITA 35/ALLD/2012

• Counselvise Citation: 3520714 RSA 2012
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 21-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: SUBHASH CHA ND
• Keywords: Opportunity of being heard
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 35/ALLD./2012 ASSTT. YEAR : 2003-04 RANJIT SINGH, PROP. M/S. KISHAN GHAR, VS. INCOME- TAX OFFICER, C. 26/35, PLOT NO. 26, RAMKATORA, RANGE 1(1), V ARANASI. LAHURABIR, VARANASI. (PAN : AYJPS 2212 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH CHAND, ADVOCATE RESPONDENT BY : SHRI Y.P. SRIVASTAVA, D.R. DATE OF HEARING : 07.11.2012 DATE OF PRONOUNCEMENT OF ORDER : 09.11.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A), VARANASI DATED 26.12.2011 FOR THE ASSESSMENT YEAR 2 003-04. 2. THE ASSESSEE HAS RAISED SEVEN GROUNDS OF APPEAL, IN WHICH THE ASSESSEE CHALLENGED THE DISALLOWANCE OF RS.4,28,192/- U/S. 4 0A(3) OF THE IT ACT. THE ASSESSING OFFICER NOTED IN THE ASSESSMENT ORDER THA T ON THIS ISSUE, THE MATTER HAS TRAVELLED TO THE TRIBUNAL, WHICH HAS BEEN RESTORED TO THE ASSESSING OFFICER FOR PASSING THE ORDER DE NOVO. THE ASSESSING OFFICER AF TER CONSIDERING THE ISSUE IN ITA NO. 35/ALLD./2012 2 DETAIL MADE THE ADDITION OF RS.4,28,192/- DISALLOWI NG THE SAME U/S. 40A(3) OF THE IT ACT. THE LD. CIT(A) WITHOUT DISCUSSING THE FACTS OF THE CASE IN THE APPELLATE ORDER REFERRED THE MATTER TO THE ASSESSING OFFICER FOR FILING THE REMAND REPORT, WHO HAS VIDE HIS LETTER DATED FILED THE REMAND REPORT D ATED 15.11.2010, WHICH IS REPRODUCED IN THE APPELLATE ORDER BY THE LD. CIT(A) AND THEREAFTER PASSED THE FOLLOWING ORDER : CONSIDERING FACTS AND CIRCUMSTANCES OF THE CASE I FIND FORCE IN ASSESSING OFFICERS CONTENTION, ACCORDINGLY THE ADD ITION MADE ON THE ABOVE MENTIONED HEAD IS HEREBY CONFIRMED. 3. THE ASSESSEE IN GROUNDS OF APPEAL EXPLAINED THAT THE ISSUE WAS FULLY EXPLAINED WITH REFERENCE TO THE IMPOUNDED MATERIAL THAT THE PROVISIONS OF SECTION 40A(3) ARE NOT APPLICABLE. IT WAS ALSO EXPLAINED TH AT PAYMENT OF RS.6,30,160/- WAS MADE ON BANK HOLIDAY, THEREFORE, IT IS COVERED BY E XCEPTION AND FURTHER PAYMENTS WERE MADE TO M/S. SAI SEEDS THROUGH DEMAND DRAFT. T HEREFORE, THE ADDITION U/S. 40A(3) IS UNJUSTIFIED. THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE ISSUE WAS CONSIDERED IN DETAIL BY THE ASSESSING OFFICER AND T HE DETAILED SUBMISSIONS AND MATERIAL WERE FURNISHED BEFORE THE LD. CIT(A) FOR C ONSIDERATION THAT DISALLOWANCE IS UNJUSTIFIED, BUT THE LD. CIT(A) DID NOT PASS ANY REASONED ORDER AND MERELY ACCEPTED THE REMAND REPORT OF THE ASSESSING OFFICER AND DISMISSED THE APPEAL OF THE ASSESSEE, WHICH IS WHOLLY IMPROPER AND ILLEGAL ORDER. THE LD. DR STATED THAT THE ITA NO. 35/ALLD./2012 3 MATTER MAY BE REMANDED TO THE LD. CIT(A) FOR RECONS IDERATION FOR PASSING THE REASONED ORDER. 4. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES IN THE LIGHT OF THE ORDER OF THE LD. CIT(A) QUOTED ABOVE, WE ARE OF THE VIEW THA T THE MATTER REQUIRES RE- CONSIDERATION AT THE LEVEL OF LD. CIT(A). SECTION 2 50(6) OF THE IT ACT PROVIDES THAT THE ORDER OF THE COMMISSIONER (APPEAL) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, DECIS ION THEREON AND THE REASONS FOR THE DECISION. THE LD. CIT(A) DID NOT DISCUSS THE FA CTS OF THE CASE, SUBMISSIONS OF THE ASSESSEE AND MATERIAL PRODUCED BEFORE HIM BY TH E ASSESSEE AT THE APPELLATE STAGE WHILE PASSING THE ABOVE ORDER. THE LD. CIT(A) MERELY QUOTED THE REMAND REPORT OF THE ASSESSING OFFICER IN THE IMPUGNED ORD ER AND AGREED WITH THE ASSESSING OFFICERS CONTENTION. THUS, THE LD. CIT(A ) DID NOT PASS ANY REASONED ORDER IN THE MATTER. THE LD. CIT(A) SHOULD UNDERSTA ND THAT HE IS A QUASI JUDICIAL AUTHORITY AND SHALL HAVE TO PASS THE APPELLATE ORDE R IN CONSONANCE WITH THE PROVISIONS OF LAW. PRACTICALLY, THE LD. CIT(A) DID NOT PASS ANY ORDER IN THIS CASE AND MERELY DISMISSED THE APPEAL OF THE ASSESSEE WIT HOUT REASONS FOR DECISION. THUS, THE ORDER OF THE LD. CIT(A) IS VIOLATIVE OF T HE PROVISIONS OF SECTION 250(6) OF THE IT ACT. THEREFORE, IT CANNOT BE SUSTAINED IN LA W. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO H IS FILE WITH DIRECTION TO RE-DECIDE ITA NO. 35/ALLD./2012 4 THE APPEAL OF THE ASSESSEE BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) SHALL DISCUSS THE FACTS OF THE CASE, SUBMISSIONS OF THE PARTIES AND THE MATERIAL ON RECO RD IN THE IMPUGNED ORDER AND SHALL GIVE HIS REASONS FOR DECISION IN THE APPELLAT E ORDER. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, ALLAHABAD 6. GUARD FILE ASSTT. REGISTRAR TRUE COPY