ITO, Gwalior V. Sh. Shyam Sundar Chhapariya, Gwalior

ITA 410/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6947 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.410/AGR/2009 ASST. YEAR: 2006-07 INCOME TAX OFFICER 2(3), VS. SHRI SHYAM SUNDAR CHHAPARIYA GWALIOR. B-2, BASANT VIHAR, GWALIOR. (PAN : ABPPC 9555J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD KUMAR, JR. D.R. RESPONDENT BY : NONE ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E IMPUGNED ORDER DATED 29.06.2009 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 3,89,560/- ON ACCOUNT OF GROSS LOSS SHOWN IN P&L ACCOUNT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 6,75,348/- ON ACCOUNT OF G.P. @ 2.25%. 3. THE APPELLANT CRAVES LEAVE TO ADDITION ALTER THE GROUNDS OF APPEALS. 2 2. THE DEPARTMENT HAS FILED THE PRESENT APPEAL ON 2 4.09.2009 WHICH CAME UP FOR HEARING BEFORE THE BENCH ON 22.02.2011 AND, ON THE WRITTEN REQUEST OF THE ASSESSEE, THE CASE WAS ADJOURNED TO 22.03.2011. ON 22.03.2011 AGAIN THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SHRI GAJE NDRA JAIN REQUESTED FOR ADJOURNMENT FOR 23.05.2011 AND THE BENCH ADJOURNED THE CASE FOR 23.05.2011. ON 23.05.20011, NEITHER THE ASSESSEE NOR THE LD. AUTHO RISED REPRESENTATIVE APPEARED AND THE BENCH DIRECTED THE THE LD. DEPARTMENTAL REP RESENTATIVE TO SERVE THE ASSESSEE FOR 11.07.2011 I.E. TODAY. IN COMPLIANCE, THE DEPARTMENT SERVED THE ASSESSEE FOR TODAY I.E. 11.07.2011. IN RESPONSE TO THE SAME, NEITHER THE ASSESSEE NOR HIS LD. AUTHORISED REPRESENTATIVE APPEARED TO P ROSECUTE THE MATTER IN DISPUTE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT INSPITE OF SERVICE THROUGH DEPARTMENT, NEITHER THE ASSESSEE NOR HIS LD. AUTHORISED REPRESENTATIVE IS INTERESTED TO PROSECUTE THE MATTER IN DISPUTE AND NO USEFUL PURPOSE WOULD BE SERVED BY AD JOURNING THE CASE AGAIN AND AGAIN. THEREFORE, WE ARE DECIDING THE ISSUE IN DIS PUTE EX-PARTE ASSESSEE, AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL REP RESENTATIVE STATED THAT THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE DEPART MENT BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AWADHESH P RATAP SINGH ABDUL REHMAN & 3 BROS VS. CIT, 210 ITR 406 (ALL.). HE REQUESTED THA T THE ISSUE IN DISPUTE MAY BE SET ASIDE TO LD. FIRST APPELLATE AUTHORITY TO DECIDE TH E SAME IN VIEW OF THE DECISION (SUPRA) OF HONBLE JUDICIAL HIGH COURT. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AWADHESH PRATAP SINGH ABD UL REHMAN & BROS VS. CIT, 210 ITR 406 (ALL.). WE ARE NOT COMMENTING UPON THE MERIT OF THE CASE AS WELL AS ON THE DECISION RENDERED BY THE HONBLE JURISDICTIO NAL HIGH COURT BECAUSE IT WILL PREJUDICE TO THE MIND OF LD. FIRST APPELLATE AUTHOR ITY, BUT WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUTE IN FAVOUR OF THE ASSESSEE AFTER CONSIDERING VARIOUS EV IDENCES WHICH HAS NOT BEEN PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFIC ER AND ACCEPTED THE BOOK RESULT OF THE ASSESSEE BY DELETING THE ADDITION IN DISPUTE . THE LD. DEPARTMENTAL REPRESENTATIVE PRODUCED ONE COPY OF THE ORDER PASSE D BY THE HONBLE JURISDICTIONAL HIGH COURT WHICH IS VERY MUCH RELEVANT TO DECIDE TH E ISSUE IN DISPUTE. THE ASSESSEE WAS ALSO NOT PRESENT BEFORE US TO CLARIFY ON THE DOCUMENTARY EVIDENCE DISCUSSED BY THE LD. FIRST APPELLATE AUTHORITY WHIL E DELETING THE ADDITION IN DISPUTE. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE IN DISPUTE TO THE LD. FIRST APPELLATE AUTHORITY TO DECIDE THE SAME AF RESH UNDER LAW, KEEPING IN VIEW 4 OF THE DECISION RENDERED BY THE HONBLE JURISDICTIO NAL HIGH COURT IN THE CASE OF AWADHESH PRATAP SINGH ABDUL REHMAN & BROS VS. CIT, 210 ITR 406 (ALL.) AND AFTER GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE . 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 15.07.2 011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 15 TH JULY, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY