Smt. Mame Borang, Roing V. Income Tax Officer, Ward-2(1), Dibrugarh

ITA 401/GTY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8216 (ITAT-GUWAHATI)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 19-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Assessment record; Set aside
• Section: 68; 143(3); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI ECOURT, AT KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L. SAINI, AM ./ITA NO.401/GAU/2019 ( / ASSESSMENT YEAR:2016-17) SMT. MAME BORANG WATER RESOURCE DEPARTMENT, P.O. ROING, LOWER DIGANG VALLEY, ARUNACHAL PRADESH 792110. VS. ITO, WD 2(1), DIBRUGARH C.R. BUILDING, MANCOTTA ROAD, DIBRUGARH, ASSAM 786003. ./ ./PAN/GIR NO.: AIMPB 1357 R (ASSESSEE) .. (REVENUE) ASSESSEE BY : NONE RESPONDENT BY : SHRI M.K. DAS, ADDL. CIT / DATE OF HEARING : 18/06/2020 /DATE OF PRONOUNCEMENT : 17/07/2020 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTA INING TO ASSESSMENT YEAR 2016-17, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL) - DIBRUGARH, IN APPEAL NO. CIT(A)/DIBRUGAR H/10061/208-19, DATED 25.04.2019, WHICH IN TURN ARISES OUT OF AN ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) DATED 18.12.2018. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS FOLL OWS: 1. FOR THAT THE IMPUGNED ORDER PASSED BY THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) (CIT(A) IS BAD IN LAW, FACTS AND PROC EDURE. 2. FOR THAT THE IMPUGNED ORDER HAVING BEEN PASSED B Y THE LD. CIT(A) WITHOUT ALLOWING ANY REASONABLE OPPORTUNITY OF HEARING AND IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE IGNORING THE ADJOURNM ENT PETITION FILED BY THE APPELLANT, THE SAME IS BAD IN LAW AND IS LIABLE TO BE QUASHED. SMT. MAME BORANG ITA NO.401/GAU/2019 ASSESSMENT YEAR:2016-17 P PP PA AA AG GG GE EE E | || | 2 22 2 3. FOR THAT THE LD. CIT(A) OUGHT TO HAVE DELETED TH E ARBITRARY ADDITION OF RS. 22,15,850/- MADE BY THE LD. AO IN RESPECT OF OPENIN G CASH IN HAND AS THE SAME WAS BEYOND JURISDICTION. 4. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN ARB ITRARILY CONFIRMING THE ADDITION OF RS. 22,15,850/- MADE BY THE LD. AO IN RESPECT OF OPENING CASH IN HAND BY INVOKING PROVISIONS OF SECTION 68 OF THE ACT. FOR T HAT THE LD. CIT(A) OUGHT TO HAVE HOLD THAT THE IMPUGNED ADDITION MADE DURING THE YEA R UNDER CONSIDERATION WAS WITHOUT ANY AUTHORITY OF LAW AND HENCE, THE SAME IS BAD IN LAW. 5. FOR THAT THE LD. CIT(A) OUGHT TO HAVE HOLD THAT THE IMPUGNED ADDITION OF RS. 22,15,850/- WAS MADE BY THE LD. AO IN UTTER DISREGA RD TO THE PRINCIPLES OF NATURAL JUSTICE AND IGNORING THE PAST ASSESSMENT RECORDS AN D CONSEQUENTLY THE SAID ADDITION WAS BAD IN LAW AND UNTENABLE. 3. AT THE OUTSET ITSELF, WE NOTE THAT ASSESSEE (BY WAY OF GROUND NO. 3 AND 5, AS NOTED ABOVE)ASSAILED THE IMPUGNED ORDER BY CONTENDI NG THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD CIT(A) AND ASSESSING O FFICER MADE ADDITION IN RESPECT OF OPENING CASH IN HAND BEYOND HIS JURISDICTION AND LD CIT(A) ALSO DID NOT CONSIDER PAST ASSESSMENT RECORDS WHILE ADJUDICATING THE ASSESSEES APPEAL. WE NOTE THAT DURING THE APPELLATE PROCEEDINGS, THE LD CIT(A) FIXED HEARINGS ON 28.02.2019, 25.03.2019 AND 24.02.2019 BUT NONE APPE ARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A). 4. WE HAVE HEARD LD DR FOR THE REVENUE AND NOTE THA T THERE IS NOTHING MENTIONED IN THE ORDER OF LD CIT(A) ABOUT SERVICE OF NOTICE O F HEARINGS TO THE ASSESSEE, THAT IS, WHETHER NOTICE OF HEARING HAS ACTUALLY BEEN SER VED ON THE ASSESSEE OR NOT. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATIO N, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDER AND NON-SPEAKING ORDER, THEREFORE, WE D O NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 5. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESS EE COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT TH E LD. CIT(A) DID NOT CONSIDERPAST ASSESSMENT RECORDS TO DISCUSS THE ASSE SSEES CASE ON MERITS, HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEA D HIS CASE BEFORE THE LD CIT(A). SMT. MAME BORANG ITA NO.401/GAU/2019 ASSESSMENT YEAR:2016-17 P PP PA AA AG GG GE EE E | || | 3 33 3 THE LEARNED DR FOR THE REVENUE DID NOT HAVE ANY OBJ ECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF THE LD CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT F IT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTI CAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17.07.2020 SD/- SD/- ( A.T. VARKEY ) (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 17/07/2020 ( BISWAJIT, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. SMT. MAME BORANG. 2. ITO, WD. 2(1), DIBRUGARH. 3. C.I.T(A)- 4. C.I.T.- GUWAHATI 5. CIT(DR), GAUHATI BENCH, GUWAHATI. 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY / DDO / H . O. O ITAT, GAUHA TI BENCH