Kanu Mazinder Baruah, Sivsagar V. Assistant Commissioner of Income Tax, Circle-Dimapur, Dimapur

ITA 38/GTY/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0286 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 16-10-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 02-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 143(3); 234B

Judgement Text

1 ITA No. 38/GTY/2020 Kanu Mazinder Baruah AY 2016-17 IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, (VIRTUAL HEARING AT KOLKATA) [BEFORE DR. MANISH BORAD, ACCOUNTANT MEMBER & SHRI SONJOY SARMA, JUDICIAL MEMBER] I.T.A. No. 38/GTY/2020 Assessment Year: 2016-17 Kanu Mazinder Baruah Baruah Complex, A.T. Road, Sivasagar, Assam-785640 (PAN: ADCPB 0468 J) Vs. ACIT, Circle-Dimapur Appellant Respondent Date of Hearing 17.10.2022 Date of Pronouncement 19.10.2022 For the Appellant Shri A.K. Gupta, AR For the Respondent Shri N.T. Sherpa, JCIT ORDER PER SONJOY SARMA, JM: This appeal filed by the assessee to the assessment year 2016-17 is directed against the order of ld. CIT(A), Jorhat dated 28.08.2019 vide appeal no. CIT(A), Jorhat/10070/2018-19 which is arising out of assessment order u/s 143(3) of the Income-tax Act, 1961 dated 29.12.2018. The assessee is in appeal before the Tribunal raising the following grounds: “i. That on the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals) (“CIT(A)”) erred in upholding the action of the assessing officer (“AO”) without appreciating that the assessment order dated 29.12.2018 passed under section 143(3) of the Income Tax Act, 1961 (“the Act”) is beyond jurisdiction, bad in law and void ab initio. ii. Without prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in passing an ex parte order dismissing the assessee’s appeal, which is against the principles of natural justice, in violation of the provisions contained under section 250(6) of the Act and bad in law. iii. Without prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the assessment order by passing an ex-parte order without providing sufficient and adequate opportunity of being heard to the appellant. 2 ITA No. 38/GTY/2020 Kanu Mazinder Baruah AY 2016-17 iv. Without Rs. prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in confirming the additions amounting to Rs. 83,81,515/- made in the assessment order without appreciating that the additions has been made on wholly erroneous, untenable and illegal grounds. v. Without prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition of Rs. 76,61,515/- made in the assessment order, without appreciating that no addition can be made merely on the basis of a statement recorded under section 131(1A) of the Act. vi. Without prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition of Rs. 76,61,515/- made in the assessment order, without appreciating that the CBDT, vide instruction No. F. No. 286/2/2003-IT (Inv) dated 10.03.2003, has specifically restrained the income tax officers from obtaining any confession or statement during the course of survey if such statement is not based on any credible evidence seized during the course of survey. vii. Without prejudice to the above, on the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition of Rs. 76,61,515/- made in the assessment order, without appreciating that the AO had not considered the facts of the case in proper perspective while making the aforesaid addition and this amount is already included in the income declared by the appellant in the return of income, resulting in double taxation of the same income. viii. That on the facts and circumstances of the case and in law, the CIT(A) erred in not appreciating that the AO erred in levying interest under section 234A, 234B and 234C of the Act. ix. That on the facts and circumstances of the case and in law, the CIT(A) erred in not appreciating that the AO erred in initiating penalty proceedings under section 271AAC of the Act. x. The appellant craves leave to add to, alter, amend or vary any of the above grounds of appeal before or at the time of hearing.” 2. At the outset, the ld. counsel for the assessee submitted that since the assessee did not get any opportunity to file relevant document and its submission before the ld. CIT(A). Therefore, one more opportunity should be given to the assessee and issue raised in the instant appeal may be set aside to the file of ld. CIT(A). 3. The ld. DR was fair enough not to oppose his request. We, therefore, under the given facts and circumstances of the case are of the considered view that since the order of the ld. 3 ITA No. 38/GTY/2020 Kanu Mazinder Baruah AY 2016-17 CIT(A) is an ex-parte order and no discussion has been made on the merits of the case. We in the interest of justice set aside the impugned order and remit it back to the file of ld. CIT(A) for deciding the issues raised in the instant appeal by way of speaking order. We also direct the assessee to remain vigilant in receiving the notices of hearing from the ld. CIT(A) and should not request for any further adjournment unless otherwise required for reasonable cause and should file all necessary documents so as to facilitate the ld. CIT(A) for passing the speaking order. Needless to mention that the assessee should be given proper opportunity of being heard. 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 19.10.2022 Sd/- Sd/- (Manish Borad) (Sonjoy Sarma) Accountant Member Judicial Member Dated: 19.10.2022 Biswajit, Sr. PS Copy of the order forwarded to: 1. Appellant– Kanu Mazinder Baruah. 2. Respondent – ACIT, Circle-Dimapur. 3. CIT(A), 4. CIT , 5. DR, ITAT, True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata