Rohit Rai Sethi, Lucknow V. Addl. Commissioner of Income Tax, Lucknow

ITA 377/LKW/2013

• Counselvise Citation: 37723714 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAI KUMAR
• Assessee Lawyers: ABHINAV MEHROTRA E
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 377/LKW/2013 ASSESSMENT YEAR: 2008 - 09 ROHIT RAI SETHI LUCKNOW V. ACIT RANGE II, LUCKNO W PAN: AOAPS5242Q (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ABHINAV MEHROTRA, ADVOCATEE RESPONDENT BY: SHRI. AJAI KUMAR, D.R. DATE OF HEARING: 01 0 7 2014 DATE OF PRONOUNCEMENT: 10 0 7 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PR EFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1. THAT THE LEARNED CIT(A) ERRED IN PASSING THE APPELLATE ORDER EX - PARTE UPHOLDING THE ASSESSMENT ORDER AND CONFIRMING ENTIRE ADDITIONS/ DISALLOWANCES M ADE BY THE A.O. 2. THAT THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT NO VALID SERVICE OF NOTICE OF APPELLATE HEARING WAS EFFECTED ON FLIMSY GROUNDS BY THE POSTAL REMARKS VIZ. SR. NO. DATE OF HEARING POSTAL REMARKS (A). 20 - 10 - 2011 ASSESSEE NOT RESIDING AT THE GIVEN ADDRESS (B). 08 - 12 - 2011 REFUSED (C). 19 - 01 - 2012 LEFT WITHOUT ADDRESS THE ABOVE FACTS SPEAKS VOLUMES IN AS MUCH AS A VERY CASUAL APPROACH HAS BEEN ADOPTED. THE LEARNED CIT IS ASSISTED BY NOTICE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : SERVER AND EVEN PROPER AND VALID S ERVICE COULD HAVE BEEN EFFECTED BY THE ITI THROUGH THE A.O. AS NO LIMITATION INVOLVED. 3. THAT THE LEARNED CIT(A) FAILED TO APPRECIATE THAT MORE OR LESS EVEN THE ASSESSMENT ORDER AND ADDITIONS /DISALLOWANCES WERE ONE SIDED AND EVEN SIMILAR AND EX - PARTE OR DER WITHOUT TAKING INTO CONSIDERATION THE MERITS OF THE CASE AND NOT A 'BEST JUDGMENT'. 4. THAT THE LEARNED CIT(A) GROSSLY ERRED IN CONFIRMING THE ADDITIONS / DISALLOWANCES AS UNDER: (I). ADDITION IN G.P. ......... RS.930587/ - (II). DISALLOWANCE OUT O F TELEPHONE EXPENSES ......... RS.57988 / - (III). DISALLOWANCE OUT OF TRAVELING EXPENSES ......... RS.392660/ - (IV). DEPRECIATION A/C ......... RS. 167608/ - (V). LEGAL & PROFESSIONAL CHARGES ..........RS.217000/ - (VI). DISALLOWANCE OUT OF PRINTING EXPE NSES ..........RS.256000/ - (VII). ADDITION ON ACCOUNT OF DIFFERENCE IN NET PROFIT TRANSFERRED TO CAPITAL A/C ..........RS.125030/ - THAT THE ADDITIONS/DISALLOWANCES ABOVE TO THE TUNE OF RS.2166870/ - ARE CONTRARY TO LAW , FACTS AND CIRCUMSTANCES OF THE CASE APART BEING HIGHLY ARBITRARY, ILLEGAL AND BASED UPON PRESUMPTIONS AND SURMISES BEING ALTOGETHER CONJECTURAL. 5 THAT THE AUTHORITIES BEL OW GROSSLY ERRED IN DETERMINING / CONFIRMING THE IMPUGNED ADDITIONS / DISALLOWANCES IGNORING THE FACTS THAT THE APPELLANT IS AN OLD ASSESSEE MAINTAINS COMPLETE BOOKS OF A/C IN THE ORDINARY AND REGULAR COURSE OF BUSINESS WHICH HAVE BEEN DULY AUDITED U/S 44AB OF THE I . T. ACT 1961 WHICH TANTAMOUNT TO MISCARRIAGE OF JUSTICE AND AGAINST THE PRINCIPLES OF EQUITY, NATURAL JUSTICE A ND GOOD CONSCIENCE. 6. THAT THE LEARNED CIT(A) ERRED IN OVERLOOKING THE COMPLETE COPIES OF ACCOUNT AND DOCUMENTARY EVIDENCES SUBMITTED BEFORE THE A.O. AND EVEN FAILED TO ADJUDICATE EACH AND EVERY GROUNDS OF APPEAL FILED BEFORE THE APPELLATE AUTHORITY RUN NING INTO ALMOST 12 GROUNDS AND THUS EVEN ON THIS SCORE IT IS A CLEAR CUT CASE OF DENIAL OF JUSTICE AND FAIR PLAY AND CAN HARDLY BE CALLED A 'BEST JUDGMENT' ON MERIT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : 7. THAT THE LEARNED CIT(A) ERRED IN IGNORING NUMEROUS DECISIONS IN THE MATTER OF ADDITI ONS/DISALLOWANCES BY VARIOUS COURTS/BENCHES. 8. THAT THE ASSESSMENT/APPELLATE ORDER ARE BAD IN LAW, HIGHLY EXCESSIVE AND DESERVES TO BE QUASHED UNDER THE TRUE FACTS AND CIRCUMSTANCES OF THE CASE READ WITH LACK OF REASONABLE AND SUFFICIENT OPPORTUNITY AFF ORDED TO THE APPELLANT. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT NOTICE OF HEARING WAS NOT SERVED UPON THE ASSESSEE BY THE LD. CIT(A) AND HE HAS HEARD THE APPEAL EX - PARTE AGAINST THE ASSES SEE AND DISMISSED THE SAME. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED TO THE LD. CIT(A) FOR RE - ADJUDICATION OF THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 3 . THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), WE FIND THAT IN THE ORDER OF THE LD. CIT(A) HE HAS RECORDED ABOUT ISSUANCE OF NOTICE, BUT THERE IS NO EVIDENCE WITH REGARD TO VALID SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE LD. CIT(A) HAS HEARD THE APPEAL EX - PARTE QUA THE ASSESSEE AND DISMISSED THE SAME. SINCE THE APPEAL HAS BEEN DISPOSED OF WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT AN OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE AND THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A). ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICAT E THE APPEAL AFRESH ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORT OF CO - OPERATION TO THE LD. CIT(A) AND TO PUT HIS APPEARANCE AS AND WHEN DESIRED BY THE LD. CIT(A). THE LD. CIT(A) IS ALSO PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : DIRECTED TO DISPOSE OF THE APPEAL WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF THE ORDER OF THE TRIBUNAL. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.7.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH JU LY , 2014 JJ: 0207 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )