Sh. Jitender Singh Dagur, Meerut V. ITO, Meerut

ITA 4671/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6487 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBEY
• Assessee Lawyers: ANURAM RISHI
• Keywords: Principle of natural justice
• Section: 44AD; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NOS.4671 & 4672/DEL/2014 ASSESSMENT YEARS: 2008-09 MR. JITENDER SINGH DAGUR, VS. ITO, WARD-1(3), 507, SECTOR-3, INCOME TAX OFFICE, SHASTRI NAGAR, MEERUT UP - 250001 MEERUT, UP-250004 (PAN: AFCPD9835K) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. ANURAM RISHI, ADV. REVENUE BY : SH. UMESH CHAND DUBEY, SR. DR ORDER PER H.S. SIDHU, JM THESE APPEALS ARE FILED BY ASSESSEE AGAINST THE SE PARATE ORDERS BOTH DATED 28.3.2014 PASSED BY THE LD. CIT(A), MEER UT RELATING TO ASSESSMENT YEAR 2008-09. SINCE THE FACTS AND CIR CUMSTANCES OF THE CASE ARE SIMILAR AND PERTAINING TO SAME ASSESSMENT YEAR I.E. 2008-09, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 4671/DEL/2014 (AY 2008-09). 2. THE GROUNDS RAISED IN ITA NO. 4671/DEL/2014 (AY 2008-09) READ AS UNDER:- 1. THAT THE PRESENT APPEAL IS FILED WITHIN TIME. 2 2.THAT THE LD. CIT(APPEALS) HAS PASSED AN ARBITRARY EX-PARTE APPELLATE ORDER, WHICH IS IN CONTRAVENTION TO THE P RINCIPLES OF NATURAL JUSTICE, AND IS LIABLE TO BE SET ASIDE. 3.THAT THE APPELLANTS HAD FILED AN ADJOURNMENT APPL ICATION ON THE LAST DATE OF HEARING FIXED ON 14.03.2014, REQUESTIN G ANOTHER DATE OF HEARING, ON THE GROUNDS THAT THE COUNSEL FOR THE APPELLANTS WAS OUT OF STATION ON THE PARTICULAR DATE FOR TREATMENT OF HIS BACK PAIN. BUT NO DATE WAS GRANTED AND NO NOTICES WERE SENT FO R THE DATE OF ORDER, I.E. 28.03.2014, AND THE SAID ORDER WAS PASS ED EX-PARTE, THEREBY DENYING THE APPELLANT THEIR SUBSTANTIVE RIG HT OF BEING HEARD, THEREBY BEING BAD IN LAW AND UNSUSTAINABLE. 4.THAT THE ISSUE OF IMPOSITION OF PENALTY U/S 271-A , THE PROVISIONS OF SECTION 44-AA OF THE INCOME TAX ACT ARE NOT ATTR ACTED IN THE PRESENT CASE, AS THE DECLARED INCOME FROM PROFESSIO NS EMANATES FROM THE GROSS RECEIPTS OF RS.3,98,975/-, AND THE R EST OF HIS RECEIPTS ARE FROM BUSINESS AND SPECULATION IN FUTUR ES TRADING. THUS, THE GROSS RECEIPTS ARE WELL WITHIN THE MINIMU M LIMIT OF RS. TEN LACS, AS SPECIFIED U/ S 44-AB FOR COMPULSORY MA INTENANCE OF BOOKS OF ACCOUNTS THEREWITH, AND NO PENALTY IS, THE REFORE, LEVIABLE ON THE APPELLANTS FOR THE RELEVANT ASSESSMENT YEAR. 5. THAT ALSO THE NET INCOME FROM PROFESSION FOR THE RELEVANT ASSESSMENT YEAR HAS RESULTED IN A LOSS OF RS.3,32,0 28/- AND THE RETURN OF INCOME IS FILED ON A SALARY OF RS.L,44,00 0/-. THUS, THE PROVISIONS OF SECTION 44AA ARE AGAIN NOT ATTRACTED HEREWITH, AND THE IMPUGNED ORDER IS LIABLE TO BE QUASHED. 6. THAT, AS PER FACTS AND CIRCUMSTANCES O F THE CAS E THE ORDER PASSED BY THE ASSESSING OFFICER IN LEVYING THE PENA LTY IS NOT JUSTIFIED, SINCE THE ORIGINAL ORDER PASSED BY THE ASSESSING OFFICER 3 UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 IS ALREADY APPEALED FOR. 7. THAT, THE ASSESSEE HAD FILED HIS RETURN UNDER SE CTION 44AD SHOWING THE LOSS FROM SHARES FUTURE & OPTION TRADIN G OF RS. 608528/, (INCLUDING EXPENSES OF TAXES 0F RS. 9513/- , AS PER GUIDANCE NOTE ISSUED BY I.C.A.I. AND DECIDED JUDGEM ENT OF MUMBAI TRIBUNAL BENCH IN THE CASE OF 'BABU LAL ENTE RPRISES VS. CIT (ITA NO. 6031/MUM/1996)' & ALSO THE RULING IN THE ROYAL CUSHION VINYL PRODUCTS LTD., CASE, AS UNDER:- 'IT IS ONLY NET OF THE SALE AND PURCHASE THAT IS TO BE TREATED AS TURNOVER, WHICH IN THE ASSESSEE CASE IS ONLY RS. 608528/- AND IS BELOW THE LIMIT OF RS. 40.00 LACS, HENCE NO AUDI T IS REQUIRED UNDER SECTION 44AB OF THE INCOME TAX ACT, 1961. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER/AM END ANY OF THE GROUNDS OF THE APPEAL BEFORE OR AT THE TIME OF HEAR ING OF THE APPEAL. PRAYER THE APPELLANTS PRAY THAT IN VIEW OF THE ABOVE GROUN DS AND SUBMISSIONS THAT :- 1. THE IMPUGNED ORDER MAY PLEASE BE SET ASIDE. 2.THE PENALTY IMPOSED U/S 271B MAY PLEASE BE WA IVED. 3. THAT THE APPELLANTS CRAVES LEAVE TO ADD, ALT ER, AMEND OR WITHDRAW ANY OF THE SUBMISSIONS MADE HEREINABOVE. 4.THAT AN OPPORTUNITY FOR PERSONAL HEARING MAY PLEA SE BE GRANTED TO THE APPELLANT. 4 3. THE GROUNDS RAISED IN ITA NO. 4672/DEL/2014 (AY 2008-09) READ AS UNDER:- 1. THAT THE PRESENT APPEAL IS FILED WITHIN TIME. 2.THAT THE LD. CIT(APPEALS) HAS PASSED AN ARBITRARY EX-PARTE APPELLATE ORDER, WHICH IS IN CONTRAVENTION TO THE P RINCIPLES OF NATURAL JUSTICE, AND IS LIABLE TO BE SET ASIDE. 3.THAT THE APPELLANTS HAD FILED AN ADJOURNMENT APPL ICATION ON THE LAST DATE OF HEARING FIXED ON 14.03.2014, REQUESTIN G ANOTHER DATE OF HEARING, ON THE GROUNDS THAT THE COUNSEL FOR THE APPELLANTS WAS OUT OF STATION ON THE PARTICULAR DATE FOR TREATMENT OF HIS BACK PAIN. BUT NO DATE WAS GRANTED AND NO NOTICES WERE SENT FO R THE DATE OF ORDER, I.E. 28.03.2014, AND THE SAID ORDER WAS PASS ED EX-PARTE, THEREBY DENYING THE APPELLANT THEIR SUBSTANTIVE RIG HT OF BEING HEARD, THEREBY BEING BAD IN LAW AND UNSUSTAINABLE. 4.THAT THE ISSUE OF IMPOSITION OF PENALTY U/S 271-B , THE PROVISIONS OF SECTION 44-AA OF THE INCOME TAX ACT ARE NOT ATTR ACTED IN THE PRESENT CASE, AS THE DECLARED INCOME FROM PROFESSIO NS EMANATES FROM THE GROSS RECEIPTS OF RS.3,98,975/-, AND THE R EST OF HIS RECEIPTS ARE FROM BUSINESS AND SPECULATION IN FUTUR ES TRADING. THUS, THE GROSS RECEIPTS ARE WELL WITHIN THE LIMIT AS SPECIFIED U/ S 44-AB FOR COMPULSORY MAINTENANCE OF BOOKS OF ACCOUN TS THEREWITH, AND NO PENALTY IS, THEREFORE, LEVIABLE O N THE APPELLANTS FOR THE RELEVANT ASSESSMENT YEAR. 5. THAT, AS PER FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE ASSESSING OFFICER IN LEVYING THE PENA LTY IS NOT JUSTIFIED, SINCE THE ORIGINAL ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 IS ALREADY APPEALED FOR. 5 6. THAT, THE ASSESSEE HAD FILED HIS RETURN UNDER SE CTION 44AD SHOWING THE LOSS FROM SHARES FUTURE & OPTION TRADIN G OF RS. 608528/, (INCLUDING EXPENSES OF TAXES 0F RS. 9513/- , AS PER GUIDANCE NOTE ISSUED BY I.C.A.I. AND DECIDED JUDGEM ENT OF MUMBAI TRIBUNAL BENCH IN THE CASE OF 'BABU LAL ENTE RPRISES VS. CIT (ITA NO. 6031/MUM/1996)' & ALSO THE RULING IN THE ROYAL CUSHION VINYL PRODUCTS LTD., CASE, AS UNDER:- 'IT IS ONLY NET OF THE SALE AND PURCHASE THAT IS TO BE TREATED AS TURNOVER, WHICH IN THE ASSESSEE CASE IS ONLY RS. 608528/- AND IS BELOW THE LIMIT OF RS. 40.00 LACS, HENCE NO AUDI T IS REQUIRED UNDER SECTION 44AB OF THE INCOME TAX ACT, 1961. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER/AM END ANY OF THE GROUNDS OF THE APPEAL BEFORE OR AT THE TIME OF HEAR ING OF THE APPEAL. PRAYER THE APPELLANTS PRAY THAT IN VIEW OF THE ABOVE GROUN DS AND SUBMISSIONS THAT :- 1. THE IMPUGNED ORDER MAY PLEASE BE SET ASIDE. 2.THE PENALTY IMPOSED U/S 271B MAY PLEASE BE WA IVED. 3. THAT THE APPELLANTS CRAVES LEAVE TO ADD, ALT ER, AMEND OR WITHDRAW ANY OF THE SUBMISSIONS MADE HEREINABOVE. 4.THAT AN OPPORTUNITY FOR PERSONAL HEARING MAY PLEA SE BE GRANTED TO THE APPELLANT. 4. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF CONVENIENCE. 6 5. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT THE REVENUE AUTHORITIES HAS PASSED AN ARBITRARY EX-PARTE ORDER, WHICH IS IN CONTRAVENTION TO THE PRINCIPLES OF NATURAL JUSTICE, AND IS LIABLE TO BE SET ASIDE. HE FURTHER STATED THAT THE ASSESSEE HAD FILED AN ADJOURNMENT APPLICATION ON THE LAST DATE OF HEARING FIXED ON 14.03.2014, REQUESTING ANOTHER DATE OF HEARING, ON THE GROUNDS THAT THE COUNSEL FOR THE ASSESSEE WAS OUT OF STATION ON THE PARTICULAR DATE FOR TREATMENT OF HIS BACK PAIN. BUT NO DATE WAS GRA NTED AND NO NOTICES WERE SENT FOR THE DATE OF ORDER, I.E. 28.03 .2014, AND THE SAID ORDER WAS PASSED EX-PARTE, THEREBY DENYING THE ASSE SSEE THEIR SUBSTANTIVE RIGHT OF BEING HEARD, THEREBY BEING BAD IN LAW AND UNSUSTAINABLE. 6. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER S OF THE REVENUE AUTHORITIES. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER. WE FIND THAT AO HAS OBSERVED THAT ASSESSEE FAILED TO FURNISH BOOKS, BILLS, VOUCHERS E TC, HENCE, THE PENALTY IN DISPUTE WAS IMPOSED. WE FURTHER FIND THAT THE R EVENUE AUTHORITIES PASSED THE EXPARTE ORDER, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER NEEDS TO BE EXAMINED AFRESH AT THE LEVEL OF THE AO, AFTER CONSIDERING A LL THE DOCUMENTS / EVIDENCES, IF ANY. ACCORDINGLY, WE SET ASIDE THE I SSUES IN DISPUTE TO THE FILE OF THE AO FOR FRESH CONSIDERATION, AS PER LAW, AFTER CONSIDERING ALL THE DOCUMENTARY EVIDENCES. HOWEVER, THE ASSESS EE IS DIRECTED TO FULLY COOPERATE WITH THE AO DURING THE PROCEEDINGS BEFORE HIM AND NOT TO TAKE ANY UNNECESSARY ADJOURNMENT IN THE CASE AND ALSO 7 PRODUCE ALL THE NECESSARY EVIDENCES BEFORE THE AO T O SUBSTANTIATE HIS CLAIM. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16/12/2016 . SD/- SD/- [PRASHANT MAHARISI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 16/12/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 8