Late Vimla Kandpal, Kanpur V. The Income Tax Officer-2(4), Kanpur

ITA 489/LKW/2014

• Counselvise Citation: 48923714 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 29-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.489/LKW/2014 ASSESSMENT YEAR 2005-06 INCOME TAX OFFICER 2(4), KANPUR VS LATE VIMLA KANDPAL, L/H OF SHRI LAXMI DUTT KANDPAL, K-36, R.S. PURAM, SARVODAYA NAGAR, KANPUR-208 005 PAN ABFPK 2146 K (RESPONDENT) (APPELLANT) SHRI RAKESH GARG, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 19 / 10 /2015 DATE OF HEARING 21 / 10 /2015 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)-II, PASSED EX-PARTE QUA THE ASSESSEE, ASSAIL ING THE ORDER OF LD. CIT(A) MAINLY ON FOLLOWING GROUNDS WHICH ARE AS UND ER:- 01. BECAUSE THE CIT(A) HAS ERRED ON FAETS AND IN L AW IN DECIDING THE APPEAL EXPARTE WITHOUT GIVING ADEQUATE OPPORTUN ITY TO THE APPELLANT, WHICH ORDER IS CONTRARY TO THE PRINCIPLE S OF NATURAL JUSTICE, BAD IN LAW AND BE QUASHED. 02. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LA W IN ENHANCING THE INCOME BY RS.15 LAKHS, WITHOUT ANY BASIS(IGNORING THE TAX AUDIT REPORT), FOR NO FAULT OF THE ASSESSEE APPELLANT, SUCH ENHANCEMENT BEING CONTRARY TO THE FACTS BE DELETED. 2 03. BECAUSE ON A PROPER APPRAISAL OF THE FACTS AND CIRCUMSTANCES OF THE CASE, KEEPING IN VIEW OF THE NATURE OF THE B USINESS, THE DETERMINATION OF INCOME BOTH BY THE AO AT RS.4,06,9 40/- AND THEREAFTER ENHANCEMENT OF THE SAME BY C1T(A) BY RS. 15 LAKHS AGGREGATING TO RS.16,06,453/- AS AGAINST RS.1 ,06,453/- DECLARED BY THE ASSESSEE, IGNORING THE FACT THAT TH E APPELLANT WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE (B OTH AGE FACTOR AND SUSPENSION OF BUSINESS), MAKES THE ORDER PERVERSE AND BE QUASHED. 04. BECAUSE THE AO AS WELL AS THE CIT(A) HAVE FAILE D TO APPRECIATE THAT THE APPELLANT HAS MAINTAINED PROPER BOOKS OF ACCOUNT, WHICH HAVE BEEN DULY AUDITED AND TAX AUDIT REPORT HAVING BEING FILED THERE WAS NO OCCASION OR REASON TO DISBELIEVE THE SAME, THE ADDITION MADE BE DELETED. 05. BECAUSE THE EXPLANATION FURNISHED BY THE ASSES SEE APPELLANT HAVING NOT FOUND TO BE FALSE OR UNTRUE THE C1T(A) W AS NOT JUSTIFIED IN DISBELIEVING THE SAME AND ENHANCING TH E INCOME ARBITRARILY. 2. DURING THE COURSE OF HEARING, ATTENTION WAS INVI TED TO THE ORDER OF LD. CIT(A) WITH THE SUBMISSION THAT THE CIT(A) HAS RECORDED DATES OF HEARING OF NOTICE BUT HAS NOT RECORDED ANY FACT WIT H REGARD TO SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE CIT(A) HAS DISMISSED THE APPEAL SUMMARILY WITHOUT DEALING ISSUES ON MERIT. THEREFOR E, THE ORDER OF LD. CIT(A) DESERVES TO BE SET ASIDE. 3. LD. DR SIMPLY PLACED RELIANCE UPON THE ORDER OF LD. CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF LD. CIT(A ), WE FIND THAT THE CIT(A) HAS RECORDED VARIOUS DATES OF ISSUANCE OF NO TICE BUT NOTHING HAS BEEN RECORDED IN RESPECT OF SERVICE OF NOTICE OF HE ARING UPON THE ASSESSEE. IN THE LIGHT OF THESE FACTS, WE ARE OF TH E VIEW THAT LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT AF FORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ACCORDINGLY SET ASI DE THE ORDER OF LD. 3 CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE WITH THE DIRECTION TO READJUDICATE THE APPEAL AFRESH AFTER AFFORDING OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (A.K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21/10/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. RE GISTRAR