SANDEEP JAIN, Jaipur V. ITO, Jaipur

ITA 42/JPR/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6290 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-03-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DHK
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 42/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07. SHRI SANDEEP JAIN, KOTAHWALA BUILDING, TRIPOLIA BAZAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 1(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADPPJ 8619 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.05.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/07/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 1 ST NOVEMBER, 2012 OF LD. CIT (A)-1, JAIPUR ARISING FROM PENALTY ORDER UNDER SECTION 271(1)(C) OF THE IT ACT FOR THE ASSESSMENT YEAR 2006-07. THE AS SESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) OF TH E ACT DATED 15.03.2012 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE, T HE SAME KINDLY BE QUASHED. 2 ITA NO. 42/JP/2013 SHRI SANDEEP JAIN, JAIPUR. 2. RS. 16,06,921/-: THE LD. CIT (A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPUGNED PENALT Y U/S 271(1)(C) OF THE ACT OF RS. 16,06,921/-. THE PENAL TY SO IMPOSED & CONFIRMED BEING TOTALLY CONTRARY TO THE PROVISION S OF LAW AND FACTS KINDLY BE DELETED IN FULL. 3. THE APPELLANT PRAYS YOUR HONOUR INDULGENCES TO A DD, AMEND OR ALTER OF OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 2. THE ASSESSEE FILED HIS RETURN OF INCOME ON 31 ST OCTOBER, 2006 DECLARING INCOME OF RS. 2,21,630/-. THE AO COMPLETED THE ASS ESSMENT UNDER SECTION 143(3) OF THE IT ACT ON 30.12.2008 DETERMINING THE TOTAL I NCOME OF THE ASSESSEE AT RS. 1,24,89,180/-. WHILE COMPLETING THE SCRUTINY ASSES SMENT, THE AO INTER ALIA MADE THE ADDITIONS OF RS. 45 LACS ON ACCOUNT OF UNACCOUN TED PURCHASES AND RS. 2,30,658/- ON ACCOUNT OF TRADING ADDITIONS. THE OTHER ADDITIO NS MADE BY THE AO WERE DELETED BY THE LD. CIT (A) IN QUANTUM APPEAL. SUBSEQUENTLY , THE AO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IN R ESPECT OF THESE TWO ADDITIONS WHICH ATTAINED FINALITY. THE AO LEVIED THE PENALTY OF RS. 16,06,921/- BEING 100% OF TAX SOUGHT TO BE EVADED VIDE ORDER DATED 15 TH MARCH, 2012. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS FILED TWO SETS OF ADDITIONAL GROUND AT THE TIME OF HEARING OF THE APPEAL AND SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN AN APPROPRIATE OPPORTUNITY OF HEARING AND NOTICES I SSUED TO THE ASSESSEE BY THE AO WERE NOT RECEIVED AS THE ASSESSEE SHIFTED TO A NEW PLACE. 3 ITA NO. 42/JP/2013 SHRI SANDEEP JAIN, JAIPUR. 4. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R ON THE ADMISSION OF THE ADDITIONAL GROUNDS FILED BY THE ASSESSEE. IT TRANS PIRED FROM THE RECORD THAT THE HEARING OF THE APPEAL WAS REPEATEDLY ADJOURNED ON T HE REQUEST OF THE ASSESSEE AND FOR THE LAST TWO OCCASIONS THE ASSESSEE WAS GRANTED LAST AND FINAL OPPORTUNITY TO ARGUE THE APPEAL. THE LD. A/R OF THE ASSESSEE HAS FILED THE ADDITIONAL GROUNDS WHICH ARE NEITHER VERIFIED NOR SIGNED BY THE ASSESSEE BUT HE HAS FILED THE ADDITIONAL GROUNDS UNDER HIS OWN SIGNATURE EVEN WITHOUT FILING ANY APPLICATION SEEKING LEAVE OF THE TRIBUNAL. THUS IT APPEARS THAT THE ADDITIONAL G ROUNDS WERE FILED BY THE LD. A/R ONLY AS A DEVICE TO AVOID THE HEARING AS THE FRESH PLEA AT THIS STAGE RAISED IN THE ADDITIONAL GROUNDS CANNOT BE ENTERTAINED AND DECIDE D WITHOUT GIVING AN OPPORTUNITY TO THE DEPARTMENT TO COUNTER THE ADDITIONAL GROUNDS SOUGHT TO BE FILED BY THE ASSESSEE. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE ADDITIONAL GROUNDS ARE NEITHER VERIFIED NOR SIGNED BY THE ASSE SSEE, WE DECLINE TO ENTERTAIN THE ADDITIONAL GROUNDS` FILED BY THE LD. A/R. 5. ON MERITS OF LEVY OF PENALTY, WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT THE IMPUGNED ORDER WAS PASSED BY THE LD. CIT (A) EX PAR TE WHEN NOBODY APPEARED ON BEHALF OF THE ASSESSEE. THE LD. CIT (A) HAS PAINFU LLY NARRATED THE DETAILS OF NOTICES ISSUED TO THE ASSESSEE BUT WERE NOT RESPONDED ON BE HALF OF THE ASSESSEE. THE RELEVANT OBSERVATIONS OF THE LD. CIT (A) REGARDING NOTICE ISSUED TO THE ASSESSEE ARE AT PAGE 3 AS UNDER :- 4 ITA NO. 42/JP/2013 SHRI SANDEEP JAIN, JAIPUR. THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING ON 15/06/2012. THE NOTICE WAS RETURNED BY THE POSTAL AUTHORITIES O N 28.05.2012. ANOTHER NOTICE DATED 10.09.2012 WAS ISS UED FIXING THE HEARING OF THE CASE ON 28.09.2012 AND WAS SERVE D ON THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT SHRI O.P . VYAS. HOWEVER NOBODY ATTENDED. ANOTHER NOTICE WAS ISSUED DATED 04.10.2012 FIXING THE HEARING ON 18.10.2012 AND WAS FORWARDED TO THE CONCERNED AO FOR SERVICE BY THE NOTICE SERVE R. AS PER THE REPORT OF THE AO DATED 15.10.2012 THE NOTICE WAS SE RVED TO THE APPELLANT BY THE NOTICE SERVER ON 11.10.2012. HOWEV ER, NO COMPLIANCE TO THE NOTICE WAS MADE ON 18.10.2012. GIVEN THE FACT THAT IN-SPITE OF REPEATED OPPORTUNIT Y THE APPELLANT DID NOT FURNISH ANY SUBMISSIONS REGARDING THE GROUNDS OF APPEAL FILED NOR WAS ANY REPRESENTATIVE MADE, IT IS HELD THAT THE SUFFICIENT OPPORTUNITY HAS NOT BEEN AVAILED OF BY THE APPELLANT BECAUSE HE HAS NOTHING TO SAY IN THE MATT ER. THEREFORE, THE CASE IS BEING DECIDED ON MERIT. THE ASSESSEE NOW PLEADED THAT DUE TO SHIFTING OF PL ACE THE NOTICES ISSUED BY THE AO AND LD. CIT (A) COULD NOT BE SERVED ON THE ASSESSEE . WE NOTE THAT NEITHER THE ASSESSEE FURNISHED ANY CURRENT ADDRESS TO THE AO OR BEFORE THE LD. CIT (APPEALS) NOR IT IS GIVEN IN THE MEMO OF APPEAL BEFORE US IN FORM NO. 36. THEREFORE, IT APPEARS THAT THE ASSESSEE IS NOT SERIOUS ABOUT THE PROCEEDI NGS EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE US. HOWEVER, HAVING REGARD TO THE FACT THAT THE APPEAL WAS DISMISSED BY THE LD. CIT (APPEALS) EX PARTE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESS EE TO PRESENT HIS CASE SUBJECT TO COST OF RS. 5,000/-. ACCORDINGLY, WE SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT (A) FOR GRANTING ONE MORE OPPORTUNITY TO THE ASSESS EE TO PRESENT HIS CASE AND THEN 5 ITA NO. 42/JP/2013 SHRI SANDEEP JAIN, JAIPUR. DECIDE THE SAME AS PER LAW. WE MAKE IT CLEAR THAT IF ASSESSEE FAILS TO APPEAR BEFORE THE LD. CIT (A), THEN THE OPPORTUNITY GRANTED BY US SHALL BE VACATED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/07/201 8. SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/07/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI SANDEEP JAIN, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ITO WARD 1(3), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 42/JP/2013} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR