M/s. Sukhbir Agro Energy Ltd, Guruharsahai V. The Joint Commissioner of Income-tax, Ferozepur

ITA 464/ASR/2013

• Counselvise Citation: 46420914 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 26-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V M SINGHAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.464(ASR)/2013 ASSESSMENT YEAR:2007-08 PAN :AAECS2724A M/S. SUKHBIR AGRO ENERGY LTD; VS. JT. COMMISSIONER OF INCOME TAX, FARIDKOT ROAD, GURUHARSAHIA. RANGE-III, FEROZEPR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. V.M.SINGHAL, CA RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING: 03/09/2014 DATE OF PRONOUNCEMENT:05/09/2014 ORDER PER A.D.JAIN, AM ; THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINS T THE ORDER DATED 21.3.2013, PASSED BY CIT(A), BATHINDA, FOR THE AS SESSMENT YEAR 2007-08. 2. AS PER THE REGISTRY, THERE IS DELAY OF 3 DAYS I N FILING THE APPEAL. AS PER THE APPLICATION FOR CONDONATION OF DELAY, THE A PPEAL WAS FILED BY THE ITA NO.464(ASR)/.2013 2 ASSESSEE BY REGISTERED POST ON 21.06.2013 AND THE S AME WAS DELIVERED AFTER 3-4 DAYS. 3. FINDING THAT THE DELAY OCCURRED IN FILING THE A PPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, THIS DELAY OF THREE DAYS IS HEREBY CONDONED. 4. AS PER GROUND NO.9, THE ASSESSEE CONTENDS THAT T HE LD. CIT(A) HAS DECIDED THE APPEAL WITHOUT GIVING PROPER OPPORTUNIT Y OF HEARING TO THE ASSESSEE, DISALLOWING THE APPLICATION FOR ADJOURNME NT FILED BY THE ASSESSEE. THE RELEVANT PORTION OF THE ORDER OF LD. CIT(A) ON THE ISSUE IS REPRODUCED AS UNDER: IN RESPONSE TO NOTICE U/S 250 OF THE I.T.ACT, 1961 DATED 13.04.2011 FIXING THE HEARING FOR 06.05.2011, NOBODY ATTENDED THE PROCEEDINGS. THEREFORE, NOTICES U/S 250 DATED 29.08.2011 FIXING THE HEARING FOR 21.09.2011 WAS ISSUED. SH. VARINDER MOHAN SINGHAL, CA, A/R OF THE APPELLANT SOUGHT ADJOURNMENT ON THE GROUND THAT HE WAS OCCUPIED IN THE FINALIZATION OF INCOME-TAX AUDIT. THE APPEAL WA S AGAIN FIXED FOR 23.01.2013 BUT ON THE APPOINTED DATE OF HEARING NO NE APPEARED NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED. THE A PPEAL WAS AGAIN FIXED VIDE NOTICE U/S 250 OF THE ACT DATED 08.03.2 013 FOR 20.03.2013 AND IN THE SAID NOTICE IT WAS SPECIFICALLY MENTIONE D THAT THIS WAS THE LAST OPPORTUNITY. HOWEVER, THE LD. A/R OF THE APPEL LANT SOUGHT EXTENSION OF TIME ON THE GROUND THAT HE WAS BUSY IN SCRUTINY CASES WITH THE DEPARTMENT. ALTHOUGH SUFFICIENT OPPORTUNITY HAS BEEN AFFORDED TO THE APPELLANT TO REPRESENT ITS APPEAL YET ON THE DATES OF HEARING, A S MENTIONED ABOVE, EITHER ADJOURNMENT HAS BEEN SOUGHT OR IT HAS NOT E VOKED ANY RESPONSE OF THE APPELLANT TO THE HEARING NOTICE. IT IS THUS, FELT THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THE APPEAL. I N SUCH CIRCUMSTANCES, THE APPEAL IS BEING DECIDED ON MERIT S. ITA NO.464(ASR)/.2013 3 IT IS SEEN FROM THE CIT(A)S ORDER THAT IT WAS ON T WO EFFECTIVE DATES THAT THE ASSESSEE DID NOT ATTEND THE HEARING FIXED. THE LAST ADJOURNMENT WAS SOUGHT, CONTENDING THAT THE AUTHORISED REPRESENTATIVE OF T HE ASSESSEE WAS HELD UP IN SCRUTINY CASES WITH THE DEPARTMENT. ACCORDING TO THE ASSESSEE, THIS IS A CLEAR DENIAL OF NATURAL JUSTICE TO THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ENDS OF JUSTICE WOULD BE MET, IF THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A), TO BE DECIDED AFRESH, IN ACCORDANCE WITH LAW, ON AFFORDI NG DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. AGAINST THE PROPOSAL OF SENDING THE MATTER TO TH E FILE OF THE LD. CIT(A) FOR DECISION AFRESH, THE LD. DR HAS TAKEN SERIOUS O BJECTION AND IT HAS BEEN CONTENDED THAT REMITTING THE MATTER WILL AMOUNT TO A NEGATION OF THE PROCESS BEFORE THE AO AS WELL AS THE LD. CIT(A), PARTICULA RLY IN THE ABSENCE OF SUFFICIENT AND REASONABLE CAUSE FOR THE ASSESSEE NO T TO ATTEND THE PROCEEDINGS BEFORE THE LD. CIT(A)., AN THAT THE ACT OF REMITTIN G THE MATTER WOULD SET A BAD PRECEDENT. ITA NO.464(ASR)/.2013 4 7. HAVING HEARD BOTH THE PARTIES ON THIS ASPECT OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THE CASE REQUIRES TO BE REMITTED TO THE FILE OF THE LD. CIT(A) FOR DECISION AFRESH, IN ACCORDANCE WITH LAW, ON PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH OUGH THE IMPUGNED ORDER MENTIONS FOUR OPPORTUNITIES HAVING BEEN AFFORDED T O THE ASSESSEE, IT IS SEEN THAT IN FACT, THERE WERE ONLY TWO SUCH EFFECTIVE OP PORTUNITIES, ON WHICH DATES, ADJOURNMENT WAS SOUGHT ON BEHALF OF THE ASSESSEE. THE ORDER MAKES MENTION OF ABSENCE OF REPRESENTATION ON BEHALF OF T HE ASSESSEE ON TWO OTHER DATES. HOWEVER, THE ORDER IS SILENT AS REGARDS THE SERVICE OF NOTICE ON THE ASSESSEE QUA THREE DATES. NOW, THOUGH ADJOURNMENT C ANNOT BE SOUGHT AS A MATTER OF RIGHT, THE GRANT OF SUFFICIENT AND PROPER OPPORTUNITY OF HEARING IS THE SINE QUA NON EVEN FOR QUASI-JUDICIAL PROCEEDIN GS. THE PURPOSE OF PROCEEDINGS BEFORE THE INCOME TAX AUTHORITIES IS TO ARRIVE AT THE CORRECT INCOME OF AN ASSESSEE. ACHIEVING THIS PURPOSE WOULD BE WELL NIGH IMPOSSIBLE, LEST AN ASSESSEE IS GRANTED ADEQUATE A ND PROPER OPPORTUNITY OF BEING HEARD, AS IS THE BASIC TENET OF NATURAL JUST ICE, WHICH PERMEATES OUR LEGAL FRAMEWORK. WE FIND THAT IN THE PRESENT CASE, THE TWO ADJOURNMENT SOUGHT WERE NOT EITHER JUST FOR THE ASKING, OR TO DELAY THE PROCEEDINGS, OR AS A MEASURE OF NON-COOPERATION WITH THE AUTHORITY. N OTHING CONTRARY HAS BEEN BROUGHT BEFORE US. IN FACT, THE APPEAL BEFORE THE CITA) BEING AN APPEAL ITA NO.464(ASR)/.2013 5 FILED BY THE ASSESSEE ITSELF, THE ASSESSEE COULD NO T STAND TO GAIN ANYTHING BY REMAINING ABSENT. THUS, THE DEPARTMENTS ARGUMENT O F NON AVAILABILITY OF REASONABLE AND SUFFICIENT CAUSE TO THE ASSESSEE DOE S NOT WEIGH AND IT FAILS. FURTHER, WE ALSO DO NOT FIND ANY FORCE IN THE ASS ERTION OF THE DEPARTMENT THAT REMITTING THE MATTER WOULD SET A BAD PRECEDENT . IN SUCH MATTERS, THE ISSUE IS TO BE DECIDED ON THE FACTS OF EACH CASE, A ND IN THE PRESENT APPEAL, AS DELIBERATED UPON HEREINABOVE, WE ARE OF THE FIRM O PINION THAT THE CASE MERITS BEING REMITTED. THEN, OTHERWISE TOO, THE DEP ARTMENT WILL NOT BE ADVERSELY AFFECTED BY THE ASSESSEE BEING SENT BACK TO THE CIT(A). FIRSTLY, THE MATTER IS NOT BEING DECIDED BY US AGAINST THE DEPAR TMENT ON MERIT. TOO, THE DEMAND AGAINST THE ASSESSEE IS INTACT, SINCE THE RE MAND IS TO THE CIT(A), AND NOT TO THE AO ( IN WHICH INSTANCE, THE DEMAND WOULD NOT HAVE SURVIVED). AND LASTLY, THE EXTENDED PENDENCY OF THE MATTER DUE TO SUCH REMAND WOULD ACT ADVERSELY TO THE INTERESTS OF THE ASSESSEE. AL SO, IT IS ENOUGH RETRIBUTION FOR THE ASSESSEES SENSE OF PRIORITY TOWARDS INCOME TAX MATTERS. 8. AS A CONSEQUENCE OF THE ABOVE DISCUSSION, THE AP PEAL IS REMITTED TO THE FILE OF THE LD. CIT(A), TO BE DECIDED AFRESH, I N ACCORDANCE WITH LAW, ON PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE A SSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE WITH THE LD. CIT(A) IN THE COURSE OF THE REMAND PROCEEDINGS AND ASSIST IN THE EXPEDITIOUS DISPOSAL OF ITS APPEAL. ITA NO.464(ASR)/.2013 6 9. SINCE THE MATTER IS SO REMITTED TO THE LD. CIT( A), THE OTHER GROUNDS, ON MERIT, ARE NOT BEING GONE INTO, AT THIS STAGE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES, AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH SEPTEMBER, 2014. SD/- SD/- (B.P. JAIN) (A.D.JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5TH SEPTEMBER, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SUKHBIR AGRO ENERGY LTD; GURUHARS AHAI. 2. THE JCIT,R-II, FEROZEPUR. 3. THE CIT(A), BHATINDA. 4. THE CIT, BHATINDA. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR