Shri Sunil Yadav, Indore V. The ITO, Indore

ITA 370/IND/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2749 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-07-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 16-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Keywords: Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER ITA NO.370/IND/2009 A.YS. 2003-04 SHRI SUNIL YADAV INDORE PAN AARPY-1238P APPELLANT VS INCOME TAX OFFICER 4(3) INDORE RESPONDENT APPELLANT BY : SHRI PRAKASH JAIN, CA RESPONDENT BY : SHRI P.K. MITRA, SR. DR O R D E R PER BENCH THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER O F THE LEARNED CIT(A) DATED 18 TH MARCH, 2009 ON THE FOLLOWING GROUNDS :- 1. THAT IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW AS WELL AS ON THE FACTS. IT IS BASED ON INCORRECT INTE RPRETATION OF LAW AND THE FACTS HAVE ALSO BEEN INCORRECTLY CONSTRUED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPE ALS) ERRED IN PASSING EX-PARTE ORDER WITHOUT ALLOWING PR OPER OPPORTUNITY TO THE APPELLANT. 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPE ALS) ERRED IN UPHOLDING THE A.O.S ACTION IN RESPECT OF ESTIMATED ADDITION OF RS.2,65,000/- TOWARDS ALLEGED UNDISCLOSED INVESTMENT IN CONSTRUCTION OF HOUSE BY ESTIMATING THE COST OF CONSTRUCTION AT RS.9,15,000/ - AS AGAINST RS.6,50,000/- DECLARED BY THE APPELLANT AND WITHOUT CONSIDERING THE FACTS OF THE CASE AND INFOR MATION ON RECORD. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPE ALS) ERRED IN UPHOLDING THE A.O.S ACTION BY TREATING TH E AGRICULTURAL INCOME TO THE EXTENT OF RS.3,18,455/- AS INCOME FROM OTHER SOURCES WITHOUT CONSIDERING THE F ACTS OF THE CASE AND INFORMATION ON RECORD. 2. DURING HEARING WE HAVE HEARD SHRI PRAKASH JAIN, LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K.MITRA, LEARNE D SENIOR DR. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE FOR WHICH OUR ATTE NTION WAS INVITED TO THE IMPUGNED ORDER TO THE FACT THAT ADJOURNMENT PET ITION WAS FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON 10.3.2009 BUT LD. FIRST APPELLATE AUTHORITY CHOSE TO DECIDE THE ISSUE EX-PARTE ON THE BASIS OF ANOTHER CASE. THIS FACTUAL MATRIX WAS NOT CONTR OVERTED BY THE REVENUE THOUGH MR. MITRA, THE LEARNED SENIOR DR DEF ENDED THE IMPUGNED ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT THE ASSESSEE DECLARED TOTAL INCOME AT RS.50,82 0/- AND AGRICULTURAL INCOME AT RS.3,98,455/- IN ITS RETURN FILED ON 10.2 .2004. AS PER THE 3 ASSESSMENT ORDER THE CASE WAS FIXED ON VARIOUS DATE S BUT DUE TO THIS OR THAT REASON THE ASSESSEE COULD NOT APPEAR AND ULTIM ATELY THE ASSESSEE PERSONALLY ATTENDED THE ASSESSMENT PROCEEDINGS ON 2 .3.2006 AND HIS STATEMENT WAS RECORDED AS IS EVIDENT FROM THE ASSES SMENT ORDER. THE ASSESSEE TOOK LOAN FOR CONSTRUCTION OF HOUSE FROM A PEX BANK, CITI FINANCE BANK AND ALSO FROM THE FATHER OF THE ASSESS EE. THE ASSESSING OFFICER ASSESSED THE TOTAL INCOME AT RS.6,34,275/-. ON APPEAL, IT IS SEEN THAT THE ASSESSEE ALONG WITH HIS WIFE REQUESTED FOR ADJOURNMENT VIDE COMBINED LETTER DATED 10.3.2009 AS THE GRAND-FATHER OF THE ASSESSEE EXPIRED. IN PARA 2.1 THE LD. FIRST APPELLATE AUTHOR ITY HAS MENTIONED THAT ADJOURNMENT IS TO BE ALLOWED ONLY FOR SUFFICIENT CA USE. THE LD. FIRST APPELLATE AUTHORITY HAS REPRODUCED CERTAIN PARAS FR OM THE ASSESSMENT ORDER AND CONCLUDED THAT THE ASSESSEE IS NOT INTERE STED TO PURSUE ITS APPEAL AND PASSED AN EX-PARTE ORDER, AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. NOW THE QUESTION ARISE S WHETHER DEATH OF THE GRAND-FATHER IS A SUFFICIENT CAUSE FOR SEEKING ADJOURNMENT ? WE ARE OF THE CONSIDERED OPINION THAT DEATH OF THE GRAND-F ATHER IS A SUFFICIENT CAUSE FOR SEEKING ADJOURNMENT, BEING A CLOSE RELATI VE. THEREFORE, THE CONCLUSION DRAWN BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) IS NOT CORRECT. THEREFORE, KEEPING IN VI EW THE PRINCIPLES OF NATURAL JUSTICE THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THIS APPEAL IS REMANDED BACK TO THE FILE OF THE LEARNED COMMISSIONER OF 4 INCOME TAX (APPEALS) WITH THE DIRECTION TO DECIDE T HE APPEAL ON MERIT AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUB STANTIATE HIS CLAIM. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON IST JULY, 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER IST JULY, 2010 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE *DN/