M/S. Smart Services, Kanpur V. Assistant Commissioner of Income Tax-3, Kanpur

ITA 354/LKW/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7610 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 01-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SWARN SINGH
• Keywords: Principle of natural justice; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 354/LKW/2018 ASSESSMENT YEAR: 2013 - 14 M/S SMART SERVICES 62 - A/5, KALYANPUR KALAN KANPUR V. AC IT - 3 KANPUR T AN /PAN : ACAFS7120D (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI SWARN SINGH, FCA RESPONDENT BY: SMT. ALKA SINGH, D.R. DATE OF HEARING: 23 04 201 9 DATE OF PRONOUNCEMENT: 23 04 201 9 O R D E R PER A. D. JAIN, V.P . : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - I, KANPUR DATED 23/3/2018 FOR ASSESSMENT YEAR 2013 - 14, TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LD. C.I . T. (APPE ALS) - I, KANPU R HAS ERRED IN LAW AND ON FACTS IN PASSING EX PART E ORDER AND SUSTAINING T HE ARBITRARY ADDITION /DISALLOWANCE OF RS. 53,13, 146/ - MADE BY THE LD. A.O . 1. THA T IN PASSING EX PARTE ORDER THE LD. C IT (APPEALS) - I , KANPUR DID NOT E VEN CALL AND EXAMINE THE ASSESSMENT RECORDS . 2. THAT T HE LD. C.L.T. ( APPEALS) - I , KA N PUR HAS ERRED IN LA W AND ON FACTS IN SUSTAINING THE ARBITRARY ADDITIONS/DISALLOWANCES OF RS.46,13,146/ - U/S 69 OF THE INCOME T A X ACT , 1961 A N D OF RS. 5,00,000/ - AS UNEXPLAINED ADDITIONAL CAS H BALANCE , MADE BY LD . A.O. ITA NO.354/LKW/2018 PAGE 2 OF 3 3. THAT THE LD. CIT. (APPEALS) - I, KANPUR HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE IMPUGNED ASSESSMENT ORDER WITHOUT APPRECIATING THE FACT THAT IN CONTRAVENTION TO CBDT CIRCULAR/INSTRUCTION, THE ITO - 3(4), KANPUR INITIALLY SELECTED THE CASE FOR SCRUTINY BY ISSUING NOTICE UNDER SECTION 143(2) OF THE INCOME TA X ACT 1961 DATED 31 08 2015 AND LATER THE CASE WAS SUO MOTO TRANSFERRED TO ACIT - 3, KANPUR WITHOUT ANY ORDER UNDER SECTION 127 OF THE INCOME TAX ACT 1961, THEREFORE, THE WHOLE ASSESSMENT IS ILLEGAL, VOID AB - I NI TIO AND LIABLE TO BE QUASHED . 4 . THAT THE IMPUG NED ASSESSMENT ORDER IS ILLEGAL WITHOUT JURISDICTION VOID - AB - INITIO AND LIABLE TO BE QUASHED. . 5 . THAT THE ORDER OF THE LD CIT (APPEALS) - I , KANPUR IS INSUPPORTABLE IN LAW AND ON FACTS IS ALSO CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY. 6 . TH AT THE ADDITION/DISALLOWANCE SUSTAINED BY LD . C IT (APPEALS) - I, KANPUR IN THE INCOME OF THE APPELLANT COMPANY ARE WHOLLY UNJUSTIFIED, UNFOUNDED AND IN ANY CASE MUCH TO HIGH AND EXCESSIVE. 2 . BY VIRTUE OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS DISMISSED THE ASS ESSEES APPEAL FOR NON PROSECUTION, OBSERVING THAT THE APPELLANT HAS NOT MADE COMPLIANCE OF THE STATUTORY NOTICE S ISSUED BY THE OFFICE OF THE LD. CIT(A) AND NO WRITTEN SUBMISSION OR PAPER BOOK HAS BEEN FILED IN SUPPORT OF ANY OF THE GROUNDS OF APPEAL. SUCH SERVICE OF NOTICES HAS, HOWEVER, BEEN DISPUTED BY THE ASSESSEE. 3 . HEARD. WE FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. MOREOVER, HE HAS NOT DECIDED THE APPEAL AFTER DISCUSSING IN DETAIL, HIS REASONS FOR AGREEING WITH THE ASSESSMENT ORDER. AS SUCH, ANOTHER OPPORTUNITY OF HEARING REQUIRES TO BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE FULLY BEFORE THE LD. CIT(A). EVEN OTHERWISE, IT IS TRITE [S. VELU PALANDAR VS. DCIT 83 ITR 683 (MAD.) AND MS. SW ATI PAWA VS. DY. CIT, 175 ITD 622 ITA NO.354/LKW/2018 PAGE 3 OF 3 (DEL) ] AND INCUMBENT ON THE LD CIT(A) TO DECIDE AN APPEAL ON MERIT EVEN IN THE ABSENCE OF ANY REPRESENTATION BEFORE THEM. 4 . IN VIEW OF THE ABOVE, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH ON MERIT, IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. 5 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 0 4 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 23 /0 4 / 201 9 JJ : 2304 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR