M/s Systametic Enterprises Pvt. Ltd., Bhopal V. The ACIT, 3(1), Bhopal

ITA 36/IND/2011

• Counselvise Citation: 3622714 RSA 2011
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 13-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Keywords: Principle of natural justice
• Section: 143(3); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE SMC BENCH-1, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.36/IND/2011 A.Y. 2005-06 M/S. SYSTEMATIC ENTERPRISES PVT. LTD., BHOPAL PAN AAFCS 5234 C APPELLANT VS ACIT-3(1), BHOPAL RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI ARUN DEWAN, SR. DR DATE OF HEARING : 23.8.2011 DATE OF PRONOUNCEMENT : 23.8.2011 O R D E R THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER D ATED 27.1.2010 OF THE LEARNED CIT(A)-II, BHOPAL, ON THE FOLLOWING GROUNDS: 1. THAT THE LD. ASSESSING AUTHORITY AS WELL AS LD. FIRST APPELLATE AUTHORITY HAS ERRED IN PASSING THE ORDER EX-PARTE 2 WITHOUT GIVING ANY OPPORTUNITY WHICH IS NOT JUSTIFIED AND THE SAME IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LD. ASSESSING AUTHORITY HAS ERRED IN DETERMINING THE TOTAL INCOME AT RS.1,79,990/- ON THE BASIS OF HYPOTHETICAL ESTIMATION OF PROFIT ON SALE OF COMPUTERS & ITS PERIPHERALS, AT RS.85,442/- AND BY SALE OF SOFT WARES AT RS.51,000/- AND FROM COMMISSION AT RS.28,000/- AND INTEREST AT RS.13,551/- WHICH IS NOT JUSTIFIED. 2. THE REGISTRY OF THIS BENCH RECEIVED ADJOURNMENT APPLICATION THROUGH FAX SHOWING INABILITY OF THE LD . COUNSEL FOR ASSESSEE FOR APPEARANCE FOR TODAY. I FIND THAT THE ASSESSEE HAD BEEN NEGLIGENT AND IS HABITUAL IN NATURE IN NOT APP EARING BEFORE THE DEPARTMENT BECAUSE THE ASSESSMENT WAS ALSO FRAM ED U/S 144 OF THE ACT AS IN RESPONSE TO NOTICE ISSUED U/S 143(2) ON 30.5.2006 AND SUBSEQUENT NOTICES ISSUED ON 27.10.06 , 1.3.2007, 4.7.2007 AND FINAL OPPORTUNITY ON 5.9.200 7 & 8.10.2007, NONE ATTENDED THE ASSESSMENT PROCEEDINGS . EVEN SHOW-CAUSE NOTICE U/S 144 WAS AFFIXED AT THE PREMIS ES OF THE ASSESSEE ON 10.12.2007 AND SAME NOTICE WAS SERVED O N 12.12.2007, THE ASSESSEE DID NOT RESPOND, CONSEQUEN TLY, THE 3 LD. ASSESSING OFFICER WAS FORCED TO FRAME THE ASSES SMENT U/S 143(3) R.W.S. 144 OF THE ACT. LIKEWISE, DURING FIRS T APPELLATE STAGE, THE ASSESSEE DID NOT APPEAR BEFORE THE LD. C IT(A) AS THERE WAS NO COMPLIANCE TO THE NOTICES DATED 28.1.2 009, 5.2.2009 AND 25.11.2009 FIXING THE HEARING ON 9.2.2 009, 18.2.2009 AND 11.12.2009, RESPECTIVELY. TODAY ALSO, INSPITE OF SERVICE OF NOTICE, THE ASSESSEE MERELY SENT ADJOURN MENT PETITION THROUGH FAX. IT SEEMS THAT THE ASSESSEE IS HABITUAL OF EITHER NOT APPEARING OR NOT COOPERATING IN DISPOSAL OF APPEAL, THEREFORE, ON THESE FACTS ITSELF, THE APPEAL OF THE ASSESSEE IS LIABLE FOR DISMISSAL. HOWEVER, BY TAKING A LENIENT VIEW, I REMAND THIS APPEAL TO THE FILE OF THE LD. CIT(A) WITH LAST AND FINAL OPPORTUNITY TO THE ASSESSEE. I AM MAKING IT CLEAR T HAT IF THE ASSESSEE STILL DID NOT APPEAR, THE LD. FIRST APPELL ATE AUTHORITY IS FREE TO TAKE THE DECISION IN ACCORDANCE WITH LAW. T HE ASSESSEE IS DIRECTED TO APPROACH THE LD. CIT(A) WITHIN SEVEN DAYS FROM THE RECEIPT OF THIS ORDER. THE LD. FIRST APPELLATE AUTHORITY MAY EITHER HEAR THE APPEAL ON THAT DATE OR AS PER CONVE NIENCE, FIX ANOTHER DATE ON WHICH THE ASSESSEE WILL HAVE TO APP EAR. SINCE 4 THE ASSESSMENT WAS ALSO FRAMED U/S 144 OF THE ACT, THE LD. FIRST APPELLATE AUTHORITY MAY SEEK REMAND REPORT, IF SO R EQUIRED, FROM THE LD. ASSESSING OFFICER, FOR DISPOSAL OF THE APPE AL. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THEREFORE, THIS APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. SR. DR AT THE CONCLUSION OF THE HEARING ON 23 RD AUGUST, 2011. (JOGINDER SINGH) JUDICIAL MEMBER DATED: 23.8.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYAS!