B.Banamber & Co., Angul V. ITO, Angul Ward, Angul

ITA 422/CTK/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4964 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SAHU
• Keywords: Principle of natural justice
• Section: 263

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO. 422 /CTK/201 7 ASSESSMENT YEAR : 2009 - 2010 M./S. BANAMBER & CO., BHAIRABI SAHI, TALCHER TOWN, ANGUL. VS. ITO, ANGUL WARD, ANGUL. PAN/GIR NO. AADFB 2121 Q (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.N.,SAHU, AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 2 3 / 0 1 / 201 9 DATE OF PRONOUNCEMENT : 2 3 / 01 / 201 9 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 , BHUBANESWAR D ATED 22.2.2017 FOR THE ASSESSMENT YEAR 20 09 - 2010. 2. THE S OLE GRIEVANCE INVOLVED IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) , BHUBANESWAR WAS NOT JUSTIFIED IN CONFIRMING THE REASSESSMENT MADE EXPARTE U/S. 144/ 263 OF THE ACT . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A FIRM AND DERIVES INCOME FROM CONTRACT WORKS AND FROM HIRE CHARGES BY LETTING OUT MACHINERIES(EXCAVATOR). THE ORIGINAL ASSESSMENT WAS P A G E 2 | 5 COMPLETED U/S.143(3) IN THE CASE OF THE ASSESSEE ON 16.11.2011 DETE RMINING TOTAL INCOME AT RS.13,39,060/ - AND ASCERTAINING THE TAX LIABILITY OF RS.11,35,100/ - . THE MATTER WAS TRAVELLED UPTO THE TRIBUNAL AND THE TRIBUNAL HAS ALLOWED THE CREDIT OF TDS IN THE HANDS OF THE ASSESSEE FROM INDIVIDUAL HAND OF THE PARTNER SUBJECT TO FURNISHING OF DECLARATION UNDER RULE 37A BY THE ASSESSEE. HOWEVER, THE ASSESSEE DID NOT FURNISH THE DECLARATION UNDER RULE 37A BEFORE THE ASSESSING OFFICER. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE CIT INVOKED HIS JURISDICTION UNDER SECTION 26 3 ON THE GROUND THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT AFTER EXAMINING/VERIFYING/ENQUIRING THE ISSUES RAISED IN SHOW C AUSE LETTER ISSUED FOR INITIATION OF PROCEEDINGS U/S.263 OF THE ACT. 4. IN PURSUANCE TO ORDER U/S.263 OF THE ACT OF THE CIT, THE ASSESSING OFFICER ISSUED VARIOUS NOTICES U/S.142(1) OF THE ACT, WHICH WERE NOT COMPLIED BY THE ASSESSEE. HOWEVER, THE ASSESSEE FURNISHED A WRITTEN SUBMISSION ON 10.2.2014 IN RESPONSE TO NOTICE U/S.142(1) OF THE ACT STATING THEREIN THAT SINCE THE ITAT HAS DISPOSED OF THE APPEAL THE CIT HAS NO JURISDICTION TO INVOKE SECTION 263 OF THE ACT. AS THE ASSESSEE DID NOT COMPLY VARIOUS P A G E 3 | 5 NO TICES ISSUED, THE ASSESSING OFFICER PASSED ORDER U/S.144 R.W.S. 263 OF THE ACT, INTER ALIA, MAKING VARIOUS DISALLOWANCES/ADDITIONS. 5. ON APPEAL, THE CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. HENCE, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRI BUNAL. 6. BEFORE ME, LD A.R,. OF THE ASSESSEE SUBMITTED THAT THE ORDER U/S.263 OF THE ACT PASSED BY THE CIT WAS NOT COMMUNICATED TO THE ASSESSEE AND, THEREFORE, THE ORDER U/S.263 IS BARRED BY LIMITATION. HE ALSO SUBMITTED THAT WITHOUT AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE, THE REASSESSMENT MADE U/S.144/263 IS ALSO AGAINST THE PRINCIPLE OF NATURAL JUSTICE. LD A.R. ALSO SUBMITTED THAT THE CIT(A) HAS PROVIDED ONLY ONE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS STAND AND EXPLANATION REGARDING THE A LLEGATION MADE BY THE ASSESSING OFFICER. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE AND TO SUB - SERVE THE PRINCIPLE OF NATURAL JUSTICE, ONE MORE OPPORTUNITY MAY KINDLY BE ALLOWED TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE ASSESSING OFFICER. 7. ON T HE OTHER HAND, LD D.R,. SUPPORTED THE ORDERS OF LOWER AUTHORITIES. LD D.R. SUBMITTED THAT WHEN THE ASSESSEE IS NOT APPEARING AND ATTENDING THE PROCEEDINGS THEN THE AUTHORITIES BELOW HAVE NO OPTION BUT TO PROCEED EXPARTE. THEREFORE, THE P A G E 4 | 5 ASSESSING OFFICER WAS RIGHT IN FRAMING ORDER U/S.144/263 OF THE ACT. HOWEVER, LD D.R. IN ALL FAIRNESS SUBMITTED THAT IF IT IS FOUND JUST AND PROPER FOR FRESH ASSESSMENT , THEN THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE CASE IS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRAMING DENOVO ASSESSMENT. 8. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. I OBSERVE THAT THE CIT(A) HAS NOT PROVIDED SUFFICIENT OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE, WHICH RESULTED INTO THE IMPUGNED ADDITIONS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). IT IS WELL ESTABLISHED PRINCIPLE OF TAX JURISPRUDENCE THAT THE ASSESSEE IS REQUIRED TO FURNISH ALL NECESSARY DOCUMENTARY EVIDENCE, DETAILS AND OTHER RELEVANT EXPLANATIONS BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AS WELL AS AT THE FIRST APPELLATE PROCEEDINGS BUT UNFORTUNATELY, IN THE PRES ENT CASE, THE ASSESSEE WAS NOT ALLOWED TO DO SO AND EMPTY HANDED ASSESSEE IS BEFORE THE TRIBUNAL AGITATING THE ADDITIONS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). KEEPING IN VIEW THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED OPINION THAT IT WOULD MEET THE ENDS OF JUSTICE, IF THE CASE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ASSESSMENT. THEREFORE, I SET ASIDE THE ORDER OF THE LOWER AUTHORITIES AND REMAND THE MATTER P A G E 5 | 5 BACK TO THE FILE OF THE AS SESSING OFFICER TO REDO THE ASSESSMENT AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE WITH THE ASSESSING OFFICER FOR EARLY DISPOSAL OF THE CASE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED ON / 0 1 /201 9 . ( CHANDRA MOHAN GARG ) JUDICIALMEMBER CUTTACK; DATED / 0 1 /20 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK DATE INITIAL 1. DRAFT DICTATED ON 2 3 .1.19 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 2 3 .1.19 (DICTATION PAD HAS BEEN ENCLOSED ALONG WITH ORIGINAL FILE) SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE OS 9. DATE ON WHICH FILE GOES TO THE SPS 10. DATE OF DISPATCH OF ORDER. 1. THE APPELLANT : M./S. BANAMBER & CO., BHAIRABI SAHI, TALCHER TOWN, ANGUL. 2. THE RESPONDENT. ITO, ANGUL WARD, ANGUL 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//