Sudarsan Nayak, Berhampur V. ACIT, Berhampur Circle, Berhampur

ITA 377/CTK/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7256 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 24-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D.K.PRADHAN
• Keywords: Reasonable cause; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO S . 377,378 & 379 /CTK/2016 ASSESSMENT YEAR S : 2006 - 07, 2007 - 08 & 2009 - 10 SUDARSAN NAYAK, 4 TH PREM NAGAR, BERHAMPUR, GANJAM VS. ACIT, BERHAMPUR CIRCLE, BERHAMPUR PAN/GIR NO. ACHPN 4215 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI B.K.MOHAPATRA, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 1 1 /01/ 2017 DATE OF PRONOUNCEMENT : 11 /01/ 2017 O R D E R THESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF CIT(A) - 1, BHUBANESWAR , ALL DATED 6.5.2016 , FOR THE ASSESSMENT YEAR S 2006 - 07, 2007 - 08 & 2009 - 2010, RESPECTIVELY . 2. THE ASSESSEE HAS TAKEN FOLLOWING COMMON GROUNDS OF APPEAL, WHICH READ AS UNDER: 1. FOR THAT THE ORDER AS PASSED BY THE LD CIT (A) IS UNJUST AND ILLEGAL ON FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NOS. 377,378 & 379 /CTK/2016 ASSESSMENT YEARS :2006 - 07, 2007 - 08 & 2009 - 10 2. FOR THAT THE LD CIT(A) SHOULD NOT HAVE DISMISSED THE APPEAL WITHOUT OFFERING REASONABLE OPPORTUNITY TO THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. FOR THAT THE LD CIT(A) SHOULD NOT HAVE CONFIRMED THE ACTION OF THE AO, REJECTING THE AGRICULTURE INCOME DISCLOSED BY THE APPELLANT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. FOR THAT THE LD CIT(A) SHOULD NOT HAVE CONFIRM ED THE ESTIMATE INCOME FROM PAN MASALA BUSINESS WITHOUT CITING ANY COMPARABLE CASE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE ABOVE APPEALS ARE TIME BARRED BY 41 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITIONS SUPPORTED BY AFFIDAVIT FOR CONDON ING THE DELAY IN FILING THE APPEALS. AFTER GOING THROUGH THE CONDONATION PETITIONS, I FIND THAT THE ASSESSEE HAD REASONABLE CAUSE FOR NOT FILING THE APPEALS WITHIN THE STIPULATED TIME. LD D.R. DID NOT HAVE ANY OBJECTION FOR CONDONING THE DELAY. I, THER EFORE, CONDONE THE DELAY OF 41 DAYS IN FILING THE APPEALS BEFORE THE TRIBUNAL AND ADMIT THE APPEALS FOR HEARING. 4. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE LD CIT(A) HAS DISMISSED THE APPEALS OF THE ASSESSEE FOR NON - COMPLIANCE ON THE DATES OF HEARING FIXED BY HIM BY OBSERVING AS UNDER: AS PER RECORDS, THIS APPEAL WAS POSTED FOR HEARING FOR THE FIRST TIME ON 3.10.2012. A PETITION SEEKING TIME WAS FILED ON 3.10.2012 ON THE GROUND THAT 'AS THE ASSESSEE IS SUFFERING FROM VIRAL FEVER, HE IS UNABLE TO ATTEND THE CASE TODAY'. ACCORDINGLY, TIME WAS ALLOWED AND THE CASE WAS ADJOURNED TO 25.10.2012. THERE WAS NO COMPLIANCE ON 25.10.2012. ONCE AGAIN THE CASE WAS POSTED FOR HEARING ON 6.2.2013 ON WHICH DATE A SI MILAR TIME PETITION WAS FILED 3 ITA NOS. 377,378 & 379 /CTK/2016 ASSESSMENT YEARS :2006 - 07, 2007 - 08 & 2009 - 10 ON 6,2.2013 ON THE GROUND THAT 'AS THE ASSESSEE IS SICK WITH HIGH BLOOD PRESSURE AND OTHER COMPLIMENTS HE IS UNABLE TO ATTEND THE CASE TODAY'. AGAIN THE CASE WAS POSTED FOR HEARING ON 27.2.2013. THROUGH A PETITION FILED ON 25.2.2013, IT WAS REQUESTED TO ADJOURN THE CASE TO SOME OTHER DATE. ACCORDINGLY, THE CASE; WAS ADJOURNED TO 8.3.2013. THE A/R OF THE ASS ESSEE APPEARED ON 8.3.2013 AND F ILED A WRITTEN SUBMISSION. THEREAFTER, THE CASE WAS POSTED FOR HEARING - ON '27.1 .2014. THE A/R APPEARED ON 27.1.2014. ONCE AGAIN THE CASE WAS POSTED FOR HEARING ON 11.8.2014. THERE WAS NO COMPLIANCE ON 11.8.2014. AGAIN THE CASE WAS POSTED FOR HEARING ON 24.12.2015 BUT THE A/R APPEARED ON 28.12.2015 SINCE 24.12.2015 WAS DECLARED AS A HOLIDAY AND FILED A PETITION SEEKING TIME. AGAIN THE CASE WAS ADJOURNED TO 28.1.2016. A PETITION WAS ALSO FILED ON 28.1.2016 SEEKING TIME. ACCORDINGLY, THE CASE WAS ADJOURNED TO 23.2.2016 ON WHICH DATE THE A/R FILED A PETITION REQUESTING FOR MORE TIME. TH EREAFTER, THE CASE WAS POSTED FOR HEARING ON 9.3.2016 AND 3.5.2016. THERE WAS NO COMPLIANCE ON BOTH THE OCCASIONS. KEEPING IN VIEW THE TREND OF NON - COMPLIANCE, I DO NOT THINK THAT ANY FRUITFUL PURPOSE WOULD BE SERVED BY KEEPING THE APPEAL PENDING. I AM THE REFORE PROCEEDING TO DISPOSE OF THE APPEAL ON MERITS ON THE BAS IS OF FACTS AND MATERIALS AVAILABLE ON RECORD. 5. HE SUBMITTED THAT THE ASSESSEE HAS A GOOD CASE AND HAS ALL RELEVANT DOCUMENTS AND EVIDENCE S ARE IN HIS POSSESSION WHICH UNFORTUNATELY COULD NOT BE FILED BEFORE THE ASSESSING OFFICER AS WELL AS BEFO RE LD CIT(A) DUE TO NON - APPEARANCE IN COMPLIANCE TO THE NOTICES ISSUED BY THEM. HE SUBMITTED THAT THE ISSUE OF AGRICULTURE INCOME TREATED BY THE ASSESSING OFFICER AS INCOME FROM OTHER SOURCES IN THE YEARS UNDER APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF SMT. SABITRI NAYAK, WIFE OF THE A SSESSEE IN ITA NOS.325 TO 330/CTK/2012 ORDER DATED 9.11.2012. HE, THEREFORE, SUBMITTED THAT IN THE INTEREST OF SUBSTANTIAL 4 ITA NOS. 377,378 & 379 /CTK/2016 ASSESSMENT YEARS :2006 - 07, 2007 - 08 & 2009 - 10 JUSTICE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LD CIT(A) AND ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT HIS APPEALS BEFORE THE LD CIT(A). 6. ON THE OTHER HAND, LD D.R. VEHEMENTLY OPPOSED THE SUBMISSION OF LD A.R. OF THE ASSESSEE. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. ON A QUERY BY THE BENCH THAT ON A CONSISTENT NON - COMPLIANCE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD CIT(A) AND WASTING VALUABLE TIME OF THE ASSESSING OFFICER, LD CIT(A) AND ALSO OF THE TRIBUNAL, WHAT COST SHOULD BE IMPOSED ON THE ASSESSEE, LD A.R. OF THE ASSESSEE FAIRLY AGREED THAT THE ASSESSEE IS WILLING TO PAY A COST OF RS.10,000/ - . I, THEREFORE, IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, SET ASIDE THE ORDERS OF LD CIT(A) UNDER APPEAL AND REMAND THE MATTER BACK TO HIS FILE FOR ADJUDICATING THE APPEALS OF THE ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS DIRECTED TO DEPOSIT A COST OF RS.10,000/ - WITHIN 30 DAYS FROM THE DATE OF THIS ORDER WITH THE INCO ME TAX DEPARTMENT. THE ASSESSEE IS FURTHER DIRECTED TO SUO - MOTO APPEAR BEFORE THE LD CIT(A) WITHIN 30 DAYS FROM THE DATE OF THIS ORDER FOR FIXING THE HEARING OF THE APPEALS. THE ASSESSEE IS ALSO DIRECTED TO FULLY COMPLY WITH THE NOTICE OF HEARING AND SU BMIT 5 ITA NOS. 377,378 & 379 /CTK/2016 ASSESSMENT YEARS :2006 - 07, 2007 - 08 & 2009 - 10 ALL EVIDENCES AND DOCUMENTS ON WHICH HE WISHES TO RELY UPON BEFORE THE LD CIT(A) AS AND WHEN CALLED UPON TO DO SO. LD CIT(A) IS ALSO DIRECTED TO DISPOSE OF ALL THESE APPEALS AS EXPEDITIOUSLY AS POSSIBLE. LD CIT( A) BEFORE TAKING UP THESE APPEALS FOR HEARING SHOULD ENSURE THAT THE ASSESSEE HAS COMPLIED WITH THE ORDER OF THE TRIBUNAL BY DEPOSITING A COST OF RS.10,000/ - . WITH THESE DIRECTIONS, THE APPEALS OF THE ASSESSEE ARE RESTORED BACK TO THE FILE OF THE LD CIT(A ). 8. IN THE RESULT, THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE OPEN COURT ON 1 1 /01/2017 IN THE PRESENCE OF PARTIES. S D/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 11 /01 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : SUDARSAN NAYAK, 4 TH PREM NAGAR, BERHAMPUR, GANJAM 2. THE RESPONDENT. ACIT, BERHAMPUR CIRCLE, BERHAMPUR 3. THE CIT(A - 1, BHUBANESWAR 4. PR. CIT , BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//