M/s Gandhi Bros. (Petrol Pump), Jammu & Kashmir V. The Income Tax Officer udhampur (J&K),

ITA 44/ASR/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89848 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 15-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. PRAMOD KUMAR, ACCOUNTANT MEMBER AND SH. A.D.JAIN, JUDICIAL MEMBER I.T.A. NO. 44(ASR)/2015 ASSESSMENT YEAR: 2010-11 PAN: AABFG2043E M/S GANDHI BROS. PETROL PUMP. TRINGLA, BATOTE, DISTT.- RAMBAN (J&K) VS. THE INCOME TAX OFFICER, UDHAMPUR (J&K) (APPELLANT) (RESPONDENT) APPELLANT BY: NONE. RESPONDENT BY: SH. TARSEM LAL, DR. DATE OF HEARING: 08.06.2015 DATE OF PRONOUNCEMENT: 08.06.2015 ORDER PER A.D.JAIN (JM): THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 010-11, AGAINST THE ORDER OF LD. CIT(A) DATED 21.11.2014, TAKING T HE FOLLOWING GROUNDS. (I) THAT THE ORDER UNDER APPEAL IS BAD IN LAW AND FACTS OF THE CASE. (II) THAT PRINCIPLE OF NATURAL JUSTICE HAS NOT BEE N FOLLOWED BOTH THE CIT(APPEAL) JAMMU & ITO, UDHAMPUR AS REASONABLE OPPORTUNITY OF BEING HEARD HAS BEEN DENIED TO THE A SSESSEE APPELLANT BY BOTH THE RESPONDENTS. (III) THAT BOTH THE RESPONDENTS HAVE ERRED IN LAW B Y ESTIMATING THE INCOME OF THE ASSESSEE WITHOUT ANY SOLID GROUND AND KNOWING THE FACT THAT THE SOURCE OF INCOME IS ONLY PETROL PUMP WHERE A LIMITED COMMISSION IS PAID. (IV) THAT THE LEARNED CIT(APPEAL) JAMMU HAS ERRED IN LAW BY NOT ACCEPTING THE WRITTEN ARGUMENTS AND EVIDENCES SUBMI TTED BEFORE HIM TO ASCERTAIN THE TRUE INCOME. (V) ANY OTHER GROUND BEFORE OR AT THE TIME OF HEARING. 2. ITA NO. 44 (ASR)/2015 ASST. YEAR 2010-11 2. THE NOTICE ISSUED TO THE ASSESSEE HAS NOT BEEN R ECEIVED BACK UNSERVED, BUT NONE HAS PUT APPEARANCE ON BEHALF OF THE ASSESSEE. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED WITH IN TH E ABSENCE OF THE ASSESSEE, WE ARE DOING SO. 3. AS PER GROUND NO.2, NEITHER THE LEARNED CIT(A), NOR THE AO HAS PROVIDED REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 4. AS PER THE IMPUGNED ORDER, IN HIS WRITTEN SUBMIS SIONS FILED BEFORE THE LEAREND CIT(A), THE ASSESSEE CONTENDED THAT: THE ITO HAD DECIDED THE CASE AGAINST THE ASSESSEE BY NOT PROVIDING SUFFICIENT OPPORTUNITIES. A PHOTOCOPY OF THE ORDER SHEET OBTAINED FROM THE OFFICE OF ITO, UDHAMPUR CLEARLY INDICATES THAT THE ASSESSEE HAS APPEARED BEFORE THE ITO ON 04.03.2013 AND THE NEXT DATE WAS FIXED FOR 11.03.2013 FOR SUBMITTING A LARGE NUMBER OF QUE RRIES WHICH WAS NOT POSSIBLE AS THE INFORMATION WAS IN POSSESSION O F DIFFERENT FAMILY MEMBERS WHO WERE ENGAGED IN A FAMILY DISPUTE. EVEN THE LEARNED ITO HAS NOT AUTHENTICATED THE SERVICE OF EARLIER NO TICES AS IT WAS NOT ASCERTAINED THAT WHO HAS RECEIVED THE SAID NOTICES. A COPY OF THE SAID ORDER SHEET IS ENCLOSED HEREWITH AS ANNEXURE-A IS B AD IN LAW. 5. IN THIS REGARD, THE LEARNED CIT(A) HAS OBSERVED THAT: THE APPELLANT HAS STATED THAT THE ASSESSESING OFFI CER, IN A SPAN OF 08 DAYS, I.E., FROM 04.03.2013 AND 11.03.2013 ASKED FOR SUBMISSION OF REPLY TO A LARGE NUMBER OF QUERRIES WHICH WAS N OT POSSIBLE TO ARRANGE IN A SHORT TIME AND THUS THE ASSESSMENT WAS COMPLETED EXPARTE. IT WAS A DENIAL OF PRINCIPLE OF NATURAL JU STICE. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT AND FIND THAT IN PARA 2 OF THE ASSESSMENT ORDER, THE AS SESSING OFFICER HAS 3. ITA NO. 44 (ASR)/2015 ASST. YEAR 2010-11 LISTED OUT VARIOUS INSTANCES OF NON COMPLAINCE BY T HE APPELLANT DESPITE NOTICES ISSUED THROUGH REGISTERED/SPEED POS T. THE ASSESSMENT ORDER MENTIONS IN IT THE PROPOSED DRAFT ASSESSMENT ORDER GIVEN TO THE APPELLANT BEFORE FINALIZING THE ASSESSMENT ORDER. T HIS PROPOSED DRAFT ASSESSMENT ORDER STATES THAT ON VARIOUS DATES OF HE ARING 10/09/2012, 08/11/2012 & 15/11/2012 NO COMPLIANCES MADE BY THE APPELLANT. IN VIEW OF THE ABOVE FACTS THE ARGUMENTS OF THE APPELL ANT THAT OPPORTUNITY WAS DENIED IS NOT CORRECT AND HENCE DIS MISSED. 6. THUS, EVEN THE LEARNED CIT(A) TALKS ABOUT INSTAN CES OF NON COMPLAINCE BY THE ASSESSEE BEFORE THE AO DESPITE NO TICES ISSUED, WHEREAS THE ASSESSEE HAD STATED IN ITS SUBMISSIONS TO THE E FFECT THAT THE EARLIER NOTICES HAD NOT BEEN SERVED ON THE ASSESSEE. 7. BE THAT AS IT MAY, THE FACT REMAINS THAT THE LEA RNED CIT(A) HAS NOT REBUTTED THE ASSESSEES CONTENTIONS OF THE ASSESSME NT HAVING BEEN COMPLETED EX-PARTE , WHEN THE AO HAD ASKED THE ASSESSE FOR SUBMISSION OF REPLY TO A LARGE NUMBER OF QUERRIES, WHICH WAS NOT POSSISBLE IN A SHORT TIME. RATHER, THE IMPUGNED ORDER SHOWS THAT EVEN THE LEAR NED CIT(A) DID NOT PROVIDE PROPER OPPORTUNITY OF HEARING TO THE ASSESS EE, OBSERVING AS FOLLOWS: IT IS TO MENTION THAT DESPITE SEVERAL NOTICES THE APPELLANT FIRM OR ITS PARTNERS HAVE NOT FILED THE RETURNS OF INCOM E BEFORE THE ASSESSING OFFICER. IT HAS NOT FURNISHED ANY INFORMA TION WITH REGARD TO THE SAID COMMISSION FROM THE PRINCIPAL BE FORE THE ASSESSING OFFICER. SINCE THE APPELLANT DID NOT FURN ISH THESE 4. ITA NO. 44 (ASR)/2015 ASST. YEAR 2010-11 PAPERS BEFORE THE ASSESSING OFFICER DESPITE REASONA BLE OPPORTUNITY, THE SAME CANNOT BE ACCEPTED AT THIS ST AGE. 8. THEREFORE, THE GRIEVANCE OF THE ASSESSEE BY WAY OF GROUND NO.2 IS CORRECT AND IS ACCEPTED AS SUCH. ACCORDINGLY, THIS MATTER IS REMITTED TO THE FILE OF THE AO, TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING DUE AND ADEQUATE OPPORTUNITY OF HEARING TO THE ASSE SSEE. THE ASSESSEE, NO DOUBT, SHALL CO-OPERATE IN THE REMAND PROCEEDING BE FORE THE AO. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.06. 2015. SD/- SD/- (PRAMOD KUMAR) ( A.D. JAIN) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 08.06.2015 /PK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. BROS. PETROL PUMP. TRINGLA, BATOTE, DIST. RAMBAN (J&K) 2. THE INCOME TAX OFFICER, UDHAMPUR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.