M/s. Roshan lal Tilak Raj & Co, Kapurthala V. The Income-tax Officer, Kapurthala

ITA 388/ASR/2012

• Counselvise Citation: 38820914 RSA 2012
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-12-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 05-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S K BANSAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO. 388(ASR)/2012 ASSESSMENT YEAR:2004-05 PAN :AAGFR3700C M/S. ROSHAN LAL TILAK RAJ & CO. VS. INCOME TAX OFFI CER, KAPURTHALA. WARD-II, KAPURTHALA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. S.K.BANSAL, ADV. RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING: 10 /12/2012 DATE OF PRONOUNCEMENT:10/12/2012 ORDER PER BENCH ; THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER OF THE CIT(A), JALANDHAR, DATED 2.7.2012 FOR THE AS SESSMENT YEAR 2004-05. 2. THE FACTS NARRATED BY THE REVENUE ARE NOT DISPUT ED BY BOTH THE PARTIES. THEREFORE, THERE IS NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSE, MR. S.K. BANSAL, ADVOCATE, STATED THAT THE LD. FIRST APPELLA TE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE EX-PARTE WITH OUT GIVING SUFFICIENT ITA NO.388(ASR)/2012 2 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SECONDL Y, HE ARGUED THAT NOTICE FOR APPEARING BEFORE THE LD FIRST APPELLATE AUTHORI TY HAS NOT BEEN SERVED UPON THE ASSESSEE AND THE REVENUE HAS ALSO NOT MADE ANY ATTEMPT TO SERVE THE NOTICE UPON THE ASSESSEE AND THE LD. FIRST APPELLAT E AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE AGAINST THE ASSESSEE WITHOUT GIVIN G PROPER OPPORTUNITY TO THE ASSESSEE, WHICH IS CONTRARY TO THE PRINCIPLE OF NAT URAL JUSTICE. THE LD. COUNSEL FOR THE ASSESSEE, SH. S.K. BANSAL, HAS ALSO FILED AN AFFIDAVIT OF SH. MANOJ KUMAR S/O SH. TILAK RAJ, PARTNER OF M/S. ROSH AN LAL TILAK RAJ & CO. (ASSESSEE) STATING THAT NO PROPER NOTICE OF HEARIN G WAS SERVED UPON THE ASSESSEE. THE LD. COUNSEL FURTHER REQUESTED THAT TH E ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD. FIRST APPELLATE AU THORITY TO DECIDE THE SAME AFRESH. 4. ON THE CONTRARY, THE LD. DR, RELIED UPON THE ORD ER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE WITH US AND WE ARE OF THE CONSIDERED VIEW THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUT E AGAINST THE ASSESSEE WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. WE HAVE THOROUGHLY GONE THROUGH THE AFFIDAVIT FILED BY THE PARTNER OF THE A SSESSEE, SH. MANOJ KUMAR AND THE CONTENTS OF THE SAME ARE REPRODUCED AS UNDE R: AFFIDAVIT ITA NO.388(ASR)/2012 3 BEFORE THE INCOME TAX APPELLATE TRIBUNAL, AMRITS AR. IN THE MATTER OF TRIBUNAL APPEAL OF M/S. ROSHAN LAL TILAK RAJ & CO. MANDI NADALA, KAPURTHALA, A.Y. 2004-05 AFFIDAVIT OF MANOJ KUMAR S/O SH. TILAK RAJ, AGED A BOUT 32 YEARS, PERMANENT RESIDING AT KAPURTHALA. 1, MANOJ KUMAR PARTNER OF M/S. ROSHAN LAL TILAK RAJ & CO. KAPURTHALA SOLEMNLY DECLARE AS UNDER: 1. THAT THE CONCERN WAS CARRYING ON THE BUSINESS OF K ACHA ARTIA ON THE BASIS OF LICENSE ISSUED BY THE MARKET COMMITTEE. 2. THAT THE BUSINESS OF M/S. ROSHAN LAL, TILAK RAJ & C O. WAS CLOSED ON 01.05.2007 DUE TO FAMILY DISPUTE. THERE I S NO SALE/PURCHASE AFTER 1.5.07. THE LAST INCOME TAX RET URN FOR THE YEAR ENDING WITH 01.03.08 WAS FILED. 3. THAT THE NOTICE DATED 03.05.2 ON THE BASIS OF THIS PRESENT APPEAL WAS DECIDED ON 02.07.12 WAS NOT SERVED UPON THE APP ELLANT. 4. THAT THE NOTICE DATED 03.05.12 ON THE BASIS OF WHIC H THE PRESENT APPEAL WAS DECIDED, DOES NOT STAND THE TEST OF SER VICE AS ENUNCIATED BY THE PUNJAB HIGH COURT 139 ITR 73, KUN J BIHARI VS. ITO. 5. THAT NO EFFORT WERE MADE BY THE DEPARTMENT TO TRACE OUT THE APPELLANT BEFORE DECIDING THE APPEAL IN VIEW OF DEL HI HIGH COURT 296 ITR 333, CIT VS. HOTLINE INTERNATIONAL PV T. LTD. 6. THAT THE LD. CIT(A) SIMPLY RELIED UPON THE REMARKS OF POSTAL AUTHORITY AND DECIDED THE APPEAL. WHEN THE BUSINES S OF THE CONCERN WAS CLOSED ON 01.05.2007 ABOUT FOUR YEARS A GO. THAT THE PRESENT ORDER OF CIT(A) WAS SERVED THROUGH THE ITO, KAPURTHALA ON 13.08.12 IN THE PRESENCE OF R.P. PURI ADVOCATE OF KAPURTHALA. DATED : 01.12.2012 SD/- (APPELLANT) PLACE:KAPURTHALA ITA NO.388(ASR)/2012 4 I, MANOJ KUMAR PARTNER OF M/S. ROSHAN LAL TILK RAJ & CO. KAPURTHALA SOLEMNLY DECLARE THAT THE ABOVE SAID FAC TS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. DATED: 01.12.2012 SD/- (APPELLANT) PLACE :KAPURTHALA. 6. KEEPING IN VIEW THE AFFIDAVIT FILED BY SH. MANOJ K UMAR AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE RE QUEST MADE BY THE LD. COUNSEL FOR THE ASSESSEE DESERVES TO BE ACCEPTED. THEREFORE , WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING PROPER OPPORTUNITY TO THE ASS ESSEE. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE LD. CIT(A) IN DECIDI NG THE CASE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH DECEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH DECEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. ROSHAN LAL TILAK RAJ & CO. KAPURT HALA. 2. THE ITO WARD II, KAPURTHALA. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY