AJAY KUMAR SINGH, ALLAHABAD V. IT OFFICER, ALLAHABAD

ITA 386/ALLD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9999 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SIDDHARATH PATHAK
• Keywords: Opportunity of being heard; Reasonable cause; Corroborative evidences; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH SMC ALLAHABAD [ THROUGH PHYSICAL COURT ] BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER I . T . A . NO . 386 /ALLD/20 18 ASSESSMENT YEAR: 20 09 - 10 AJAY KUMAR SINGH, 109/23C MEERAPATTI, DHOOMANGANJ, ALLAHABAD - 211011 V S . THE INCOME TAX OFFICER, WARD 2(1), (FORMER JURISDICTION) THE INCOME TAX OFFICER WARD 2 (1), VARANASI - 211001 PAN: BGBPS7284Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SIDDHARATH PATHAK, ADVOCATE RESPONDENT BY SHRI A.K. SINGH, SR. D.R. DATE OF HEARING 10/03/2021 DATE OF PRONOUNCEMENT 12 /03 / 2021 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.09.2018 OF CIT(A) FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. BECAUSE THE L D. COMMISSIONER OF INCOME TAX (APPEALS), VARANASI HEREINAFTER REFERRED TO AS CIT (A), HAS ERRED IN LAW AND ON FACTS IN DECIDING THE CASE OF THE APPELLANT WITHOUT GIVING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESENT CASE BEFORE HIM. 2. BECAUSE THE ID. COMMISSIONER OF INCOME TAX (APPEALS), VARANASI HAS ERRED IN LAW AND FACTS IN NOT TREATING THE ADJOURNMENT APPLICATION SEND THROUGH 'E - MAIL' ON ALL THE DATES AS COMPLIANCE TO THE NOTICES SEND BY HIM AND DECIDED THE CASE OF APPELLANT EX - PARTE. ITA NO. 386/ALLD/2018 2 3. BECAUSE THE CASE OF THE APPELLANT STOOD TRANSFERRED TO THE JURISDICTION OF CIT, ALLAHABAD AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEAL) VARANASI IS BEYOND THE APPELLATE JURISDICTION OF ID. CIT(APPEAL) VARANASI. 4. BECAUSE T HE ID CIT(A) HAS HEARD IN LAW AND FACTS AND NOT APPRECIATING THE PECULIAR CIRCUMSTANCES IN THE PRESENT CASE WHICH WAS BEYOND THE CONTROL OF APPELLANT AND MAKING THE EX - PARTE ORDER DENYING THE APPELLANT REASONABLE OPPORTUNITY OF BEING HEARD. 5. BECAUSE IN DUE TIME A REQUEST FOR TRANSFER OF APPEAL FROM VARANASI JURISDICTION TO ALLAHABAD JURISDICTION WAS MADE ON 25.10.2017 THEREFORE THE LD. CIT (APPEAL) VARANASI SHOULD HAVE TRANSFERRED THE APPEAL TO JURISDICTION OF CIT (APPEAL) ALLAHABAD. 6. BECAUSE LOOKING TO THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE IMPUGNED APPELLATE ORDER, PASSED BY THE LD. CIT (APPEAL), VARANASI AS ALSO THE ASSESSMENT ORDER 16.11.2011, PASSED BY INCOME TAX OFFICER WARD 2(1) - VARANASI IS UNJUSTIFIED WHICH DESERVES TO BE SET ASID E FOR DE - NOVO AND THE APPELLANT PRAYS FOR THE SAME. 7. BECAUSE THE ORDER PASSED BY THE LOWER AUTHORITIES, LOOKING TO THE PECULIAR CIRCUMSTANCES IN THIS CASE, ARE ILLEGAL AND UNJUSTIFIED WHICH DENIED THE APPELLANT PROPER JUSTICE ON MERITS OF HIS CASE. 3. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAD SHIFTED FROM VARANASI TO ALLAHABAD WHEN THE SCRUTINY ASSESSMENT WAS TAKEN UP BY THE ASSESSING OFFICER AND THEREFORE ASSESSEE COULD NOT PRODUCE THE RELEVANT DETAILS AS ASKED BY THE ASSESSING OFFICER. HE HAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAS PASSED AN EX - PARTE ORDER AND APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE . THE LD. AR HAS REFERRED TO THE CORRESPONDENCE BEING THE LETTER WRITTEN BY THE ASSESSEE TO THE LD . CIT (A) AS WELL AS ASSESSING OFFICER FOR TRANSFERRING OF HIS CASE TO ALLAHABAD PLACED AT PAGE NO. 4 AND 5 OF THE PAPER BOOK. THE LD. AR HAS SUBMITTED THAT DESPITE THE REQUEST MADE BY THE ASS ESSEE FOR TRANSFER OF THE CASE THE CIT (A) HAS ITA NO. 386/ALLD/2018 3 DISMISSED THE APP EAL BY EX - PARTE ORDER. FINALLY, THE JURISDICTION OF THE ASSESSEE WAS TRANSFERRED TO ALLAHABAD AND THE I.T.O. RANGE - 2(1) HAS PASSED THE PENALTY ORDER U/S 271 (1) (C) ON 12.08.2014. ACCORDINGLY, THE LD. AR HAS PLEADED THAT THE MATTER MAY BE SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GRANTING ONE MORE OPPORTUNITY TO THE ASSESSEE TO FURNISH THE RELEVANT DETAILS AND SUPPORTING DOCUMENTARY EVIDENCES. 4. ON THE OTHER HAND, THE LD. DR HAS OBJECTED TO THE REMAND OF THE MATTER TO THE ASSESSING OFFICER AND SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE LD. AO AS WELL AS LD. CIT (A) T HE ASSESSEE HAS FAIL ED TO COMPLY WITH NOTICE ISSUED BY THE AUTHORITIES BELOW. HE HAS RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 5 . I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. T HERE IS NO DISPUTE THAT THE ASSESSEE WAS EARLIE R RESIDING IN VARANASI AND WAS U NDER THE JURISDICTION OF ITO - WARD 2(1), VARANASI. HOWEVER, SUBSEQUENTLY, THE ASSESSEE SHIFTED TO ALLAHABAD AND HE HAS ALSO APPLIED FOR TRANSFER OF THE JURISDICTION TO THE ALLAHABAD. THE ASSESSING OFFICER HAS ASSESSED THE TOTAL INCOME OF RS. 15,83,251/ - WHILE FRAMING THE ASSESSMENT U/S 143 (3) AGAINST THE TOTAL INCOME DECLARED BY THE ASSESSEE OF RS . 1,48,560/ - . DESPITE VARIOUS NOTICES THE ASSESSEE FAILED TO PRODUCE THE NECESSARY DETAILS, EXPLANATIONS AND SUPPORTING EVIDENCES AND CONSEQUENTLY THE ASSESSING OFFICER HAS MADE CERTAIN ADDITION S . THE ASSESSEE HAS CHALLENGED THE ACTION OF THE ASSESSING OFF ICER BEFORE THE LD. CIT (A) H OWEVER, DUE TO NON APPEARANCE/ATTENDANCE ON BEHALF OF THE ASSESSEE, APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE. IT IS PERTINENT TO NOTE THAT THE CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION IN PARA 5 AS UNDER: - 5. UNDER THESE CIRCUMSTANCES, IN MY CONSIDERED OPINION, ASSESSEE IS NOT INTERESTED IN PROSEC UTING THE APPEAL. AS SUCH I HOLD THAT THUS APPEAL IS LIABLE TO BE DISMISSED FOR NON PROSECUTION. IN THIS REGARD, WE PLACE RELIANCE UPON FOLLOWING CASE LAWS: ITA NO. 386/ALLD/2018 4 1. CIT VS. MULTIPLAN INDIA LTD. 38 ITD 320 (DEL) 2. ESTATE OF LATE TUKOJIRAO HOKAR VS. CWT 223 ITR 480 (M.P.) 3. NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495 (P&H) 4. CIT VS. B.N. BHATTACHARGEE AND ANOTHER 118 ITR 461 (SC). 6. THE LD. CIT (A) HAS NOT ADJUDICATED THE APPEAL OF THE ASSESSEE ON MERITS BUT THE SAME WAS DISMISSED IN LIMINE FOR WANT OF PROSECUTION . THE ORDER OF THE CIT (A) IS NOT SUSTAINABLE IN LAW AS THE PROVISIONS OF SECTION 250 OF THE INCOME TAX ACT REQUIRES THE CI T (A) TO DECIDE THE APPEAL ON MERITS. ACCORDINGLY, IN VIEW OF THE FACT THAT THE ASSESSEE HAS EXPLAINED A REASONABLE CAUSE FOR NON - COMPLIANCE OF NOTICE ISSUED BY THE ASSESSING OFFICER AS WELL AS NON - APPEARANCE IN THE PROCEEDINGS BEFORE THE LD. CIT (A) THE IMPUGNED ORDER S OF THE AUTHORITIES BELOW ARE SET ASIDE AND MATTER IS REMANDED TO THE RECORD OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER GIVING AN APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSES SEE. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MARCH, 2021. SD/ - ( VIJAY PAL RAO ) ALLAHABAD JUDICIAL MEMBER DATED: 12 /0 3 /2021 A.K., PS COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR, I.T.A.T. 6. GUARD FILE ITA NO. 386/ALLD/2018 5 BY ORDER (I.T.A.T., ALLAHABAD) TRUE COPY