M/s Pragati Enterprises, Etawah V. Dy. C.I.T., Circle-(5), Firozabad

ITA 362/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0238 (ITAT-AGRA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 23-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 362/AGRA/2012 ASSTT. YEAR : 2006-07 M/S. PRAGATI ENTERPRISES, VS. D.C.I.T., CIRCLE- 5, 46, OLD CHAUGURJEE, FIROZABAD. ETAWAH.(PAN: AAIFP 4153F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 31.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 01.02.2013 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II, AGRA DATED 28.03.2012 FOR THE ASSESSMENT YEAR 2006- 07, CHALLENGING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE IT ACT. 2. IN THIS CASE, THE RETURN OF INCOME WAS FILED DEC LARING TOTAL INCOME AT RS.14,51,000/-. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE AO NOTICED THAT PARTNER SHRI RAM NARESH SINGH HAS BEEN ALLOWED EXCE SSIVE REMUNERATION AS AGAINST PROVIDED IN THE PARTNERSHIP DEED. THE ADDIT ION WAS ACCORDINGLY MADE ON THE SAME AMOUNT AND PENALTY WAS ACCORDINGLY LEVIED U/S. 271(1)(C) OF THE IT ACT. ITA NO. 382/AGRA/2012 2 THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT DESPITE GIVING SEVERAL OPPORTUNITIES, THE ASSESSEE HAS NOT BEEN AB LE TO AVAIL THE OPPORTUNITY. THEREFORE, THE ORDER OF THE AO WAS CONFIRMED AND TH E APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 3. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, I AM OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A). ACCORDING TO THE IMPUGNED ORDER, THE APPEAL WAS LASTLY FIXED BEFORE THE LD. C IT(A) ON 21.03.2012. THE LD. CIT(A) NOTED THAT ON EARLIER DATE ALSO, THE ADJOURN MENT WAS SOUGHT ON ONE OR THE OTHER REASON AND THAT THE ASSESSEE DID NOT AVAIL OF ANY OPPORTUNITY. THEREFORE, THE APPEAL WAS DECIDED EXPARTE. THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF APPLICATION DATED 13.03.2012, WHICH WAS STATED TO B E FILED BEFORE THE LD. CIT(A) SEEKING ADJOURNMENT ON 21.03.2012 ON THE REASON OF ILLNESS OF THE COUNSEL FOR ASSESSEE. APPLICATION WAS SUPPORTED BY THE MEDICAL CERTIFICATE. COPY OF THE SAME IS TAKEN ON RECORD. IT WOULD, THEREFORE, SHOW THAT THE COUNSEL FOR THE ASSESSEE WAS ILL AND WAS NOT ABLE TO APPEAR BEFORE THE LD. CIT(A) ON THE DATE FIXED ON 21.03.2012. THE LD. CIT(A) DID NOT DISCUSS THIS APPLICATION IN THE APPELLATE ORDER AND NOTHING IS STATED WHETHER SUCH APPLICATION FOR ADJOURNMENT WAS ALSO REJECTED OR NOT. THEREFORE, IT APPEARS THAT THE ASSESSEE HAS REASONA BLE CAUSE FOR FAILURE TO APPEAR BEFORE THE LD. CIT(A). FURTHER, THE LD. CIT(A) IS R EQUIRED, EVEN IF PROCEED EXPARTE, ITA NO. 382/AGRA/2012 3 TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS GIVI NG REASONS FOR DECISION IN THE APPELLATE ORDER AS REQUIRED U/S. 250(6) OF THE IT A CT. THE LD. CIT(A) DID NOT GIVE ANY REASONS FOR DECISION IN THE APPELLATE ORDER AND CONFIRMED THE ORDER OF THE AO LEVYING THE PENALTY BECAUSE NOTHING HAS BEEN STATED BEFORE HIM DESPITE GIVING OPPORTUNITY OF BEING HEARD TO HIM. THE ORDER OF THE LD. CIT(A), THEREFORE, CANNOT BE SUSTAINED IN LAW. I ACCORDINGLY SET ASIDE THE OR DER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF THE ASSESSEE TO HIS FILE WITH DIRECTI ON TO RE-DECIDE THE APPEAL ON MERITS BY GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING ALSO UNDERTOOK BEFORE ME THAT THE ASSESSEE WOULD NOT SEEK ANY ADJOURNMENT BEFORE THE LD. CIT(A) ON ANY REASON, WHATSOEVER, AT THE TIME OF HEARING OF APPEAL. I ACC ORDINGLY, DIRECT THE LD. CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE PREFERABLY WITHIN ONE MONTHS FROM THE RECEIPT OF THIS ORDER AND THE APPEAL SHALL BE HEARD ON THE FIR ST DATE OF HEARING WITHOUT GIVING ANY ADJOURNMENT TO THE ASSESSEE IN THE MATTER. IN T HE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- ITA NO. 382/AGRA/2012 4 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY