Sh. Vimal Upadhyay, Gwalior V. I.T.O., Ward-1(1), Gwalior

ITA 403/AGR/2010

• Counselvise Citation: 40320314 RSA 2010
• Duration Of Justice: 1 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-10-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 27-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Opportunity of being heard
• Section: 142(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 403/AGRA/2010 ASSTT. YEAR : 2003-04 SHRI VIMAL UPADHYAYA, VS. INCOME-TAX OFFICER, PARTNER OF BHAWANI PRASAD SHARMA, WARD 1(1), GWA LIOR. SHINDE KI CHHAWANI, GWALIOR. (PAN : AALPU 6194 L) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI RAJENDRA SHARMA, ADVOCATE FOR RESPONDENT : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 17.10.2011 DATE OF PRONOUNCEMENT : 17.10.2011 ORDER PER B.C. MEENA, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING O UT OF THE ORDER DATED 26.07.2010 OF CIT(A), GWALIOR. 2. THE ASSESSEE IS A PARTNER OF M/S. BHAWANI PRASAD SHARMA, GWALIOR. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE CASE OF THE FIRM, M/S . BHAWANI PRASAD SHARMA, IT WAS NOTICED THAT THE PARTNERS INCLUDING THE ASSESSEE HAD INTRODUCED CAPITAL OF RS.65.45,320/-, OUT OF WHICH AN AMOUNT OF RS.1,40,000/- WAS INTRODUCED BY THE ASSES SEE AS CAPITAL DURING THE YEAR UNDER CONSIDERATION. THEREFORE, AFTER RECORDING THE REASO NS, NOTICE U/S. 148 OF THE ACT WAS ISSUED REQUIRING HIM TO FILE THE RETURN OF INCOME. NOTICES U/S. 142(1) OF THE ACT WERE ALSO ISSUED TO EXPLAIN THE NATURE AND SOURCE OF INVESTMENT MADE BY THE ASSESSEE IN THE FIRM. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE TO COMPLY WITH T HE NOTICES. THEREFORE, THE ASSESSING OFFICER ITA NO. 403/AGRA/2010 2 COMPLETED THE ASSESSMENT U/S. 147 READ WITH SECTION 144 OF THE ACT AND MADE AN ADDITION OF RS.1,40,000/- TO THE TOTAL INCOME OF THE ASSESSEE. THE LD. CIT(A) CONFIRMED THE ADDITION. 3. WE HAVE HEARD BOTH THE SIDES AND HAVE PERUSED TH E MATERIAL AVAILABLE ON RECORD. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSE SSEE CHALLENGED THE VALIDITY OF PROCEEDINGS INITIATED U/S. 147 OF THE ACT. HE ALSO CONTENDED TH AT THE ASSESSMENT HAS BEEN MADE EXPARTE WITHOUT AFFORDING REASONABLE AND SUFFICIENT OPPORTU NITY OF BEING HEARD. SUCH GROUND WAS ALSO TAKEN BEFORE THE LD. CIT(A), WHICH APPEARS TO HAVE NOT BEEN PROPERLY CONSIDERED. THE ASSESSMENT ORDER IS SILENT ON THE POINT WHETHER VAR IOUS NOTICES ISSUED TO THE ASSESSEE WERE PROPERLY SERVED ON IT OR NOT. THE LD. DR HAS ALSO N OT LAID ANY EVIDENCE ON RECORD AGAINST THE CONTENTION OF ASSESSEE. HENCE, WE FIND THAT THE ASS ESSEE HAS NOT BEEN GIVEN REASONABLE OPPORTUNITY OF BEING HEARD BEFORE THE ASSESSING OFF ICER TO PUT UP ITS CASE. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE SHOULD HAV E BEEN GIVEN REASONABLE OPPORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER TO PUT UP ITS CASE AND PRODUCE EVIDENCES AVAILABLE WITH HIM. WE, THEREFORE, IN THE INTEREST OF JUSTICE, CONSIDER IT APPROPRIATE TO RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT T HE ASSESSING OFFICER SHALL DECIDE THE MATTER DE NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 17.10.2011. SD/- SD/- (H.S. SIDHU) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 17 TH OCTOBER, 2011 ITA NO. 403/AGRA/2010 3 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY