Sh. Jagjiwan Aggarwal, Distt. Moga V. The Addl. Commissioner of Incomet-ax, Moga

ITA 414/ASR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0626 (ITAT-AMRITSAR)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gross profit estimation
• Section: 43B

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. NOS. 411, 412 & 413(ASR)/2012 ASSESSMENT YEARS: 2007-08, 2007-08 & 2008-09 PAN :ACDPA2961P SHRI JAGDISH AGGARWAL, VS. DY. COMMR. OF INCOME TA X, KACHA ZIRA ROAD, MOGA RANGE, MOGA. MOGA. (APPELLANT) (RESPONDENT) ITA NO.414(ASR)/2012 ASSESSMENT YEAR 2007-08 PAN:ACDPA2960N M/S. JAGJIWSAN AGGARWAL, VS. DY. COMMR. OF INCOME TAX, VILL. KHOSLA PENDO, MOGA. MOGA RANGE,MOGA. (APPELANT) (RESPONDENT) APPELLANT BY:NONE RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING: 01/01/2013 DATE OF PRONOUNCEMENT:01/01/2013 ORDER PER BENCH ; THE ASSESSEE HAS FILED THESE FOUR APPEALS AGAINST T HE IMPUGNED ORDERS OF CIT(A)-II, LUDHIANA, EACH DATED 16.08.2012. AS T HE ISSUES INVOLVED IN ALL 2 THESE APPEALS ARE COMMON, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVE NIENCE. 2. THE GROUNDS RAISED IN ITA NO.411(ASR)/2012 WHICH ARE SIMILAR IN OTHER GROUNDS EXCEPT VARIATION IN AMOUNTS, ARE REPR ODUCED HEREUNDER: 1. THAT THE ORDER OF THE LD. CIT(A) IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT THE LD. CIT(A) HAS GRAVELY ERRED IN LAW AND FA CTS OF THE CASE IN DISMISSING THE APPEAL OF THE ASSESSEE WITHO UT PASSING A SPEAKING ORDER. 3. THAT THE LD. CIT(A) HAD GRAVELY ERRED IN LAW BY FAI LING TO APPRECIATE THAT DESPITE THE FAILURE ON THE PART OF THE APPELLANT TO PUT IN AN APPEARANCE ON THE STIPULATED DATE OF HEAR ING OF THE APPEAL, HE REMAINED UNDER A STATUTORY OBLIGATION TO DISPOSE OF THE APPEAL AFTER DISCUSSING THE MERITS OF THE VARIO US CLAIMS RAISED BY THE ASSESSEE IN THE APPEAL. 4. THAT THE LD. CIT(A) GRAVELY ERRED IN LAW BY DISMISS ING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION WITHOUT CONSIDERING THE FACTS AND THE GROUNDS RAISED BY THE ASSESSEE. 5. THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS OF THE CASE BY SUSTAINING THE ADHOC ADDITION OF RS.24,500/- MADE B Y THE AO TOWARDS LOW GROSS PROFIT. 6. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE D ISALLOWANCE OF RS.2,114/- MADE BY THE AO U/S 36(1)(VA) R.W. SEC . 43B OF THE ACT. 7. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS.31,500/- MADE BY THE A.O. U/S 40(A)(IA) OF TH E ACT. 8. THAT THE LD. CIT(A) HAD ERRED IN SUSTAINING THE ARB ITRARY ADDITION OF RS.2,92,436/- MADE BY THE A.O. AS ALLEG ED UNDISCLOSED INCOME OF THE ASSESSEE. 9. THAT THE LD. CIT(A) HAD ERRED IN SUSTAINING THE EST IMATED DISALLOWANCE OF RS.5,000/- TOWARDS ALLEGED PERSONAL USAGE OF CAR AND TELEPHONE BY THE ASSESSEE. 10. ANY OTHER GROUND OF APPEAL AS MAY BE ALLOWED TO BE RAISED AT THE TIME OF HEARING OF THE APPEAL. 3 3. THE AFORESAID APPEALS CAME UP FOR HEARING BEFORE THIS BENCH ON 11.12.2012 AND ON THE REQUEST OF THE ASSESSEES CO UNSEL PRESENT APPEALS WERE ADJOURNED FOR 21.12.2012 AND FURTHER DUE TO NO N-FUNCTIONING OF THE BENCH, THE OFFICE HAS ADJOURNED MATTER FOR TODAY I. E. 01.01.2013. TODAY, SH. RAVISH SOOD, THE LD. COUNSEL FOR THE ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT BUT KEEPING IN VIEW THE ISSUES IN DISPU TE AS MENTIONED IN THE IMPUGNED ORDERS, WE ARE NOT INCLINED TO ADJOURN THE MATTER IN DISPUTE. THEREFORE, WE REJECT THE PRESENT APPLICATION AND DE CIDE THE ISSUES IN DISPUTE AFTER HEARING THE LD. DR, EX-PARTE ASSESSEE. 4. AFTER HEARING THE LD. DR AND PERUSING THE IMPUGN ED ORDER PASSED BY THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT TH E LD. FIRST APPELLATE AUTHORITY HAD DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION IN THE ABSENCE OF THE ASSESSEE. AS PER THE IMPUGNED ORDER, NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON 18.10.2011 FIXING THE CASE ON 23.11.2011. NOBODY ATTENDED THE PROCEEDINGS AND THE CASE WAS FIXED FOR HEARING ON 08.01.2012, 20.02.2012, 21.03.2012 AND 13.08.2012 INSPITE OF SE RVING THE NOTICES THROUGH REGISTERED POST. AS PER IMPUGNED ORDER, THE ASSESSEE DID NOT FILE ANY WRITTEN SUBMISSIONS ON MERITS REGARDING GROUNDS OF APPEAL AND THE LD. FIRST APPELLATE AUTHORITY BY CITING VARIOUS DECISIONS OF THE INCOME TAX APPELLATE TRIBUNAL IN WHICH THE TRIBUNAL HAS DISMISSED THE APPEAL FOR NON- 4 PROSECUTION IN LIMINE DUE TO NON-ATTENDANCE OF ASSE SSEE, THE LD. FIRST APPELLATE AUTHORITY HAS ALSO DISMISSED THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION BY PASSING IMPUGNED ORDERS. 5. AFTER PERUSING THE IMPUGNED ORDERS AS WELL AS TH E CITATIONS CITED BY THE LD. FIRST APPELLATE AUTHORITY IN THE IMPUGNED O RDERS ALONGWITH THE PROVISIONS OF LAW UNDER WHICH THE LD. FIRST APPELLA TE AUTHORITY HAS POWER TO HEAR THE APPEALS AGAINST THE ORDER OF THE A.O., WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO PROVISION OF LAW UNDER THE INCOME TAX ACT, 1961 AND INCOME TAX RULES, 1962, THE LD. FIRST APPELLATE AUT HORITY CAN DISMISS THE APPEAL FILED BY ANY ASSESSEE FOR NON-PROSECUTION. A CCORDING TO THE PRESCRIBED PROVISIONS, THE LD. FIRST APPELLATE AUTH ORITY HAS TO DECIDE THE CASE ON MERITS ONLY. BUT IN THE PRESENT CASE, THE LD. FI RST APPELLATE AUTHORITY HAS PASSED THE IMPUGNED ORDERS CONTRARY TO THE LAW AS W ELL AS CITATIONS CITED BY HIM IN THE IMPUGNED ORDERS. THE DECISIONS MENTIONED BY THE LD. FIRST APPELLATE AUTHORITY IN THE IMPUGNED ORDERS FOR EMP OWERING THE ITAT TO DISMISS THE APPEAL FOR NON-PROSECUTION BUT NOT EMPO WERING THE LD. CIT(A) TO DISMISS THE APPEALS FOR NON-PROSECUTION. THEREFORE , IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(A) IN THE ABSENCE OF ASSESSEE AND WITHOUT GIVIN G SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERE D VIEW THAT THE IMPUGNED 5 ORDERS DESERVE TO BE CANCELLED AND WE CANCEL THE SA ME BY SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE S AME AFRESH UNDER THE LAW AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE . THUS, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL P URPOSES. 6. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1ST JANUARY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1ST JANUARY,2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: I)SH. JAGDISH AGGARWAL, MOGA, (II) SH . JAGJIWAN AGGARWAL, MOGA. 2. THE DCIT, MOGA 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.