Shri Manoj Kumar Agarwal, Agra V. I.T.O.-4(2), Agra

ITA 434/AGR/2010

• Counselvise Citation: 43420314 RSA 2010
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-10-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 23-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.434/AGR/2010 ASSESSMENT YEAR: 2000-01 SHRI MANOJ KUMAR AGARWAL, VS. INCOME TAX OFFICER 4 (2), 9/200, MOTI KATRA, AGRA. AGRA. (PAN: AACPA 0535 H). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 20.10.2011 DATE OF PRONOUNCEMENT : 20.10.2011 ORDER PER H.S. SIDHU, J.M. : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 28.09.2010 PASSED BY THE LD. CIT(A)-II, AGRA FOR TH E ASSESSMENT YEAR 2000-01 ON THE FOLLOWING GROUNDS OF APPEAL :- (1) (A) BECAUSE, THE 'CIT(A)' WAS HIGHLY UNJUSTIFI ED IN PASSING NON-SPEAKING ORDER WITHOUT DWELLING UPON THE GROUND S OF APPEAL. (B) BECAUSE, THE IMPUGNED ORDER IS IN VIOLATION TO THE EXPRESS PROVISIONS OF SECTION 250(6) OF THE 'ACT' WHICH MAN DATES THAT THE 'CIT(A)' HAS TO STATE THE POINTS ARISING IN APPEAL, DECISION THEREON AND THE REASONS FOR SUCH DECISION. ITA NO.434/AGR/2010 A.Y. 2000-01 2 (C) BECAUSE, THE DATES NOTED IN THE APPELLATE ORDER , ON WHICH NON- COMPLIANCE IS ALLEGED IS CONTRARY TO THE FACTS ON RECORDS AS ON THE NOTED DATES NO SUCH NON-COMPLIANCE IS MAR KED BY THE 'CIT(A)'. (D) BECAUSE, THE 'CIT(A)' HAS WRONGLY PRESUMED THAT THE CONDUCT OF THE 'APPELLANT' IS NOT TO PERUSE THE APPEAL IGNO RING THE FACT THE 'APPELLANT' WAS KEEN TO GET THE APPEAL DISPOSED OFF AT AN EARLY POINT OF TIME AND FOR THIS EVEN MOVED AN APPL ICATION DATED 28.08.2010 IN THE OFFICE OF THE 'CIT(A)' SHOWING TH AT THE ISSUE UNDER APPEAL IS A COVERED ISSUE AND EARLY HEARING M AY BE GRANTED. (E) BECAUSE, NOTICE FIXING THE DATE OF HEARING DID NOT REACH THE 'APPELLANT' AND THEREFORE, THE IMPUGNED ORDER PASSE D IN VIOLATION OF THE NATURAL JUSTICE IS VOID AB INITIO AND DESERVES TO BE QUASHED. THE DECISION RELIED BY THE 'CIT(A)' IS NOT AVAILABLE IN LAW REPORT QUOTED IN THE APPELLATE ORDER, IN ALTERNATIVE AND WITHOUT PREJUDICE TO THE ABOVE (2) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE APEX COURT DECISION IN CIT VS. S URESH CHANDRA MITTAL (2001) 251 ITR 9 (S.C.), THE LEARNED ASSESSING OFFICER ERRED IN LEVYING PENALTY OF ` 1,25,000/- U/S 271(1)(C) OF THE 'ACT'. (3) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, ASSESSEE OFFERED THE INCOME BEFORE THE DDI, VOLUNTA RILY, PRIOR TO ANY ENQUIRY, THIS OUGHT NOT TO HAVE BEEN SUBJECT ED TO PENALTY U/S 271(1)(C). (4) BECAUSE, THE LONG-TERM CAPITAL GAIN AS REPORTE D IN THE ORIGINAL RETURN WAS SUPPORTED BY VARIOUS DOCUMENTAR Y EVIDENCES AND WAS A GENUINE TRANSACTION, OBSERVATIO NS OF THE LEARNED ASSESSING OFFICER ARE LARGELY BASED ON UNFO UNDED PRESUMPTIONS AND SURMISES. (5) BECAUSE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING PENA LTY UNDER ITA NO.434/AGR/2010 A.Y. 2000-01 3 SECTION 271(1)(C) SOLELY TAKING AID OF EXPLANATION (I) TO SECTION 271(1)(C) OF THE 'ACT'. (A) DURING THE COURSE OF PROCEEDINGS ASSESSEE OFFE RED AN EXPLANATION, WHICH WAS ALSO SUPPORTED BY RELEVANT A ND COGENT EVIDENCES, THE EXPLANATION WAS BONAFIDE AND HAS NOT BEEN FOUND/PROVED TO BE FALSE. (B) BECAUSE, EVEN IF EXPLANATION I APPLIES, THE FA CT OF CONCEALMENT HAD FIRST TO FALL WITHIN THE SUBSTANTIV E PROVISION OF SECTION 271(1)(C) FOR WHICH THERE IS N O EVIDENCE. (6) BECAUSE, IN ANY VIEW OF THE MATTER THE PENALTY ORDER IS BAD ON FACTS AND IN LAW. 2. THE FACTS NARRATED BY THE ASSESSEE ARE NOT DISPU TED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE INCOME TAX OFFICER 4(2), AGRA VIDE ORDER DATED 28.0 5.2007 HAS LEVIED PENALTY OF ` 1,25,000/- UNDER SECTION 271(1)(C) OF THE INCOME TA X ACT, 1961 (THE ACT HEREINAFTER). AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE ORDER DATED 28.09.201 0, DISMISSED THE APPEAL FILED BY THE ASSESSEE WITHOUT GIVING SUFFICIENT OPPORTUNI TY TO THE ASSESSEE. HE STATED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE MAY BE GIVEN SOME MORE OPPORTUNITY TO SUBSTANTIATE ITS CLAIM BEFORE THE LD. FIRST APPELLA TE AUTHORITY AND HAS ALSO UNDERTAKEN TO CO-OPERATE IN THE APPELLATE PROCEEDIN GS AND NOT TO TAKE UNNECESSARY ADJOURNMENTS. ITA NO.434/AGR/2010 A.Y. 2000-01 4 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER DATED 28.09. 2010 PASSED BY THE LD. FIRST APPELLATE AUTHORITY IN WHICH THE LD. FIRST APPELLAT E AUTHORITY HAS CONFIRMED THE PENALTY AMOUNTING TO ` 1,25,000/- UNDER SECTION 271(1)(C) OF THE ACT. FO R THE SAKE OF CONVENIENCE, THE IMPUGNED ORDER DATED 28.09 .2010 PASSED BY THE LD. FIRST APPELLATE AUTHORITY IS REPRODUCED AS UNDER :- APPELLATE ORDER AND GROUNDS OF DECISION THIS APPEAL HAS BEEN FILED AGAINST THE PENALTY ORDE R DATED 28.5.07 PASSED U/S 271(1)(C) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY ITO-4(2), AGRA. CONSEQUENT UPON THE FILING OF APPEAL THE CASE VIDE NOTICE OF HEARING DATED 22.10. 07 WAS FIXED FOR 7.11.07, ON THE FIXED DATE THE APPELLANT REQUESTED FOR ADJOURNMENT AND CASE WAS ADJOURNED FOR 3.12.07. ON 3.12.07, NEI THER ANYBODY APPEARED NOR ANY ADJOURNMENT APPLICATION WAS FILED. AGAIN THE CASE WAS FIXED VIDE THIS OFFICE NOTICE DATED 16.1.08 AND DATE OF COMPLIANCE WAS FIXED FOR 28.1.08, ON THE FIXED DATE THE APPELL ANT REQUESTED FOR ADJOURNMENT AND CASE WAS ADJOURNED FOR 11.2 08. AG AIN THE CASE WAS FIXED VIDE THIS OFFICE NOTICE DATED 28.2.08 AND DAT E OF COMPLIANCE WAS FIXED FOR 10.3.08, BUT AGAIN ON THE FIXED DATE APPE LLANT REQUESTED FOR ADJOURNMENT AND CASE WAS ADJOURNED FOR 20.3.08. AGA IN THE CASE WAS FIXED VIDE THIS OFFICE NOTICE DATED 24.8.10 AND DAT E OF COMPLIANCE FIXED FOR 31.8.10, BUT ON THE FIXED DATE NEITHER ANYBODY APPEARED NOR ANY ADJOURNMENT APPLICATION WAS FILED. AFTER THAT LAST NOTICE DATED 13.9.10 WAS SENT TO THE APPELLANT AND DATE OF COMPLIANCE FI XED FOR 27.9.10, BUT ON THE FIXED DATE NEITHER ANYBODY APPEARED NOR ANY ADJOURNMENT APPLICATION WAS FILED. 2. IT IS SEEN FROM THE CHRONOLOGY OF THE DATES OF HEARING THAT THE APPELLANT HAS BEEN GIVEN MORE THAN AMPLE OPPORTUNIT IES TO PRESENT HIS ITA NO.434/AGR/2010 A.Y. 2000-01 5 CASE, HOWEVER, FROM THE CONDUCT OF THE APPELLANT, I T IS PRESUMED THAT HE IS NOT INTERESTED IN PURSUING THE APPEAL. IN TH E CASE OF CIT VS. B.M. BHATTACHARYA 11 ITR 461 THEIR LORDSHIPS OF SUP REME COURT HELD THAT APPEAL DOES NOT MERELY MEANS FILING OF MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. THEREFORE, AS THE AP PELLANT DOES NOT WANT TO PROSECUTE THE APPEAL, I HAVE NO OPTION BUT TO DISMISS THE APPEAL. 3. IN THE RESULT, APPEAL IS DISMISSED. 6. AFTER GOING THROUGH THE AFORESAID ORDER, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS NOT GIVE N SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ESTABLISH HIS CLAIM. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE IN DISPUTE TO THE LD. FIRST APPELLATE AUTHORI TY FOR DECIDING THE SAME IN ACCORDANCE WITH LAW, AFTER GIVING SUFFICIENT OPPORT UNITY TO THE ASSESSEE 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 20.10.2011). SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 20 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY