Anoop Kumar Mehra, Kanpur V. Dy. Commissioner of Income Tax-II, Kanpur

ITA 445/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4871 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 03-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Opportunity of being heard; Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.445/LKW/2015 ASSESSMENT YEAR 2010-11 DCIT, CIRCLE-II, KANPUR VS. ANOOP KUMAR MEHRA 77, GOVT INDUSTRIAL ESTATE, KALPI ROAD, KANPUR PAN AIEPM 1772 F (RESPONDENT) (APPELLANT) WRITTEN SUBMISSION ( SHRI NARPAT JAIN, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 1 4 /01/2016 DATE OF HEARING 04 / 02 /2016 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-I, KANPUR, INTERALIA ON FOLLOWING GROUNDS :- . (1) THE LEARNED CIT (APPEAL) WAS WRONG IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS. 45107/- U/S 2 71(1)(C) OF THE L.T. ACT 1961 FOR A.Y. 2010-11 EXPARTE WITHOUT PROV IDING PROPER & REASONABLE OPPORTUNITY OF BEING HEARD. (2) THE LEARNED CIT(APPEAL) WHILE CONFIRMING THE P ENALTY HAS WRONGLY HELD THAT THE ADDITION IN RESPECT OF WHICH PENALTY HAS BEEN IMPOSED WAS MADE ON THE BASIS OF SURRENDERED AMOUNT FOR BOGUS PURCHASES BECAUSE THE SURRENDER WAS NOT BASED ON BO GUS PURCHASES BUT IT WAS ON ACCOUNT OF THE NON AVAILABI LITY OF THE SELLER PARTY M/S VIPIN TRADERS AS THEY HAD CLOSED DOWN THE IR BUSINESS. 2 (3) THE LEARNED CIT (APPEAL) HAS FAILED TO APPRECI ATE THAT THERE WAS NO CONCEALMENT OF ANY INCOME NOR FILING OF INACCURA TE PARTICULARS THEREOF & THE PROVISIONS OF SECTION 271(L)(C) OF TH E ACT WERE NOT APPLICABLE TO THE FACTS OF THE CASE AS EXPLAINED BY THE APPELLANT IN THEIR WRITTEN REPLY DEED 27.02.2013 TO THE ASSESSIN G OFFICER. (4) THAT THE LEARNED CIT(APPEAL) HAS ALSO FAILED T O CONSIDER THAT IN THE PENALTY ORDER, THERE HAS BEEN NO SPECIFIC & CLEAR F INDING AS TO WHETHER THE PRESENT CASE WAS A CASE OF LEVY OF PENA LTY FOR CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THE ABSENCE OF SUCH FINDING, THE PENALTY ORDER PASS ED BY THE A.O IS A NOT VALID ORDER. (5) IN ANY CASE & WITHOUT PREJUDICE TO THE ABOVE G ROUNDS, THE QUANTUM OF PENALTY IMPOSED IS MUCH TOO HIGH & EXCES SIVE. (6) THAT THE APPELLANT CRAVES LEAVE, TO AMEND OR AL TER ANY GROUNDS OF APPEAL AT THE TIME OF HEARING OF APPEAL. (7) THAT THE ORDER OF THE LEARNED CIT(A) IS AGAINST LAW, FACTS & PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(A) HAS DISPOSED OF THIS APPEAL E XPARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE CIT (A) WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING PROP ER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. LD. DR PLACED RELIANCE UPON THE ORDER OF THE CIT (A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A ) IN THE AFORESAID CASE, WE FIND THAT THE CIT(A) HAS SIMPLY RECORDED IN HIS FIRST PARA DIFFERENT DATES OF HEARING FIXED BY HIM BUT HE HAS NOT RECORDED CATEGO RICALLY WITH RESPECT TO SERVICE OF NOTICE OF HEARING. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT CIT(A) HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RE STORE THE MATTER BACK TO HIS 3 FILE WITH THE DIRECTION TO READJUDICATE THE APPEAL AFRESH ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 04/02/2016 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR