Shri Rajan Dutta, Jammu ( J&k) V. The Income-tax Officer, Jammu

ITA 422/ASR/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0711 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-04-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUDERSHAN KAPOOR
• Keywords: Opportunity of being heard
• Section: 142(1); 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NOS.420, 422 & 423(ASR)/2012) ASSESSMENT YEARS:2004-05, 2004-05 & 2005-06 PAN: AAOPD4913H SHRI RAJAN DATTA S/O VS. THE INCOME TAX OFFICER, SH. GOPAL KRISHAN DATTA, WARD-2(2), JAMMU. 15-CANAL ROAD, OPP. BSF CAMP, PLOURA, JAMMU J & K ) (APPELLANT) (RESPONDENT) APPELLANT BY:SH.SUDERSHAN KAPOOR, ADVOCATE RESPONDENT BY: SH. UMESH TAKYAR, DR DATE OF HEARING: 30/05/2016 DATE OF PRONOUNCEMENT: 03/06/2016 ORDER PER A.D. JAIN, JM: THESE ARE THE THREE APPEALS FILED BY ASSESSEE FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06, AGAINST THE CONSOLIDATE D ORDER DATED 14.02.2012, PASSED BY THE LD. CIT(A). JAMMU, ONE I S AGAINST THE PENALTY US/ 271(1)(C) OF THE I.T. ACT, 1961 AND OTHER TWO ARE AGAINST THE QUANTUM. 2. THE EARLIER ORDER DATED 23.04.2014, PASSED BY TH E TRIBUNAL IN THIS CASE WAS RECALLED VIDE ORDER, DATED 06.05.2016, PAS SED IN M.A. NOS.106, 108 & 109(ASR)/2014, OBSERVING THEREIN, THAT THE TR IBUNAL HAS OBVIOUSLY ITA NOS. 420, 422 & 423(ASR)/2012 A.YS. 2004-05 & 2005-06 2 NOT TAKEN INTO ACCOUNT THE SUBMISSIONS OF THE ASSES SEE AND THE DECISION OF THE HONBLE MADRAS HIGH COURT, RELIED UPON BY TH E ASSESSEE IN THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI, 250 ITR 187 (SC) IN ITS ORDER DATED 23.04.2014. IT WAS, THEREFORE, THE ORDER OF T HE TRIBUNAL DATED 23.04.2014 WAS RECALLED. THIS IS HOW THE MATTER IS NOW BEFORE THIS BENCH. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ORIGINALLY THE ASSESSEE FILED PETITIONS BEFOR E THE LD. CIT, JAMMU, UNDER SECTION 264 OF THE ACT, WHICH WERE DISMISSED BY THE LD. CIT, AS NOT MAINTAINABLE. THEREAFTER, THE ASSESSEE FILED TH E APPEALS BEFORE THE LD. CIT(A), WHO ALSO DISMISSED THE APPEALS OBSERVING AS UNDER: IN VIEW OF THE ABOVE, IT IS QUITE CLEAR THAT IN CA SES WHERE THE PETITION U/S 263 OF THE I.T. ACT HAS BEEN REJECTED BY THE CIT, JAMMU, NO REMEDY LIES WITH THE CIT(A) EVEN AGAINST THE ORDER ORIGINALLY PASSED BY THE AO AS THE ASSESSEE HAS ALR EADY AVAILED THE REMEDY BEFORE THE CIT, JAMMU U/S 264 OF THE I.T.ACT . HENCE, THESE APPEALS ARE NOT ADMISSIBLE BEFORE THE CIT(A) FOR TH IS REASON ALONE AND ARE TREATED AS DISMISSED BEING INCOMPETENT FOR THE STATISTICAL PURPOSES. 4. THE LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUED THAT EVEN AFTER THE DISMISSAL OF PETITION U/S 264 BY THE LD. CIT, THE A SSESSEE HAD THE RIGHT TO FILE THE APPEALS BEFORE THE CIT(A). FOR THIS, RELIA NCE WAS PLACED ON THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI, 250 ITR 187 ( MADRAS), WHERE THE HONBLE HIGH COURT HAS OBSERVED AS UNDER: ITA NOS. 420, 422 & 423(ASR)/2012 A.YS. 2004-05 & 2005-06 3 IT IS OPEN TO THE LAW-MAKER TO PROVIDE MORE THAN O NE REMEDY TO THE AGGRIEVED PARTY AND SO LONG AS SUCH REMEDIES AR E AVAILABLE, THE AGGRIEVED PARTIES CAN CERTAINLY INVOKE THEM. THE TRIBUNAL HAS RIGHTLY HELD THAT THE ASSESSEE, NO TWITHSTANDING HIS UNSUCCESSFUL EFFORT AT HAVING THE ORDER REVISED , COULD STILL FILE AN APPEAL AS INVOKING THE REVISIONAL JURISDICTION C OULD NOT CONSTITUTE A BAR TO THE FILING OF AN APPEAL. IT IS FOR THE LEGISLATURE TO IMPOSE SUCH A BAR IF IT CONSIDERS IT NECESSARY TO D O SO. 5. IN VIEW OF THE ABOVE, THE LD. COUNSEL FOR THE AS SESSEE REQUESTED THAT ALL THE APPEALS MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION ON MERITS. 6. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE I MPUGNED ORDERS AND CONTENDED THAT THE ASSESSMENTS IN THESE CASES WERE COMPLETED BY THE AO BY INVOKING THE PROVISIONS OF SECTION 144 OF THE ACT ON ACCOUNT OF ASSESSEES FAILURE TO COMPLY WITH THE STATUTORY NOT ICES ISSUED U/S 143(2) AND 142(1) OF THE ACT. 7. HAVING HEARD BOTH THE PARTIES, WE ARE OF THE CON SIDERED VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEALS OF THE ASSESSEE BEING INCOMPETENT, PARTICULARLY, IN VIEW OF THE REL IANCE PLACED BY THE ASSESSEE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT, IN THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI, 250 ITR 187 (MAD .). ACCORDINGLY, WE REMIT ALL THE THREE APPEALS TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING ALL THE DOCUMENTARY EVIDENCES TO BE PLACED BY THE ASSESSEE IN THE COUR SE OF FRESH PROCEEDINGS ITA NOS. 420, 422 & 423(ASR)/2012 A.YS. 2004-05 & 2005-06 4 AND AFTER AFFORDING DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE, NOT DOUBT, SHALL COOPERATE IN THE FRESH PROCEEDINGS BEFORE THE LD. CIT(A). HENCE, ALL THE T HREE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03/06/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 03/06/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SHRI RAJAN DATTA S/O SH. GOPAL KRISHAN DUTTA, JAMMU. 2. THE ITO WARD 2(2), JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.