MOHAN LAL MUTHA, JAIPUR V. ITO, WARD -6(1), JAIPUR

ITA 5/JPR/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7101 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 40(a)(ia)

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh ,u-ds-lSuh] mik/;{k ,oa Jh lanhi x®lkÃa] U;kf;d lnL; ds le{k BEFORE: SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA No. 05/JP/2020 fu/kZkj.k o"kZ@Assessment Year :2009-10 Shri Mohan Lal Mutha through its Legal Heir Gyan Chand Mutha c-1, Raja Park, Jaipur cuke Vs. Income-tax Officer, Ward-6(1), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABWPM9882F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Saurabh Harsh (Adv.) jktLo dh vksj ls@ Revenue by: Smt. Monisha Choudhary (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 02/12/2021 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 02/12/2021 vkns'k@ ORDER PER: N.K. SAINI, VICE PRESIDENT This is an appeal by the assessee against the order dt. 21/10/2019 of the Ld. CIT(A)-2, Jaipur. 2. Following grounds have been raised in this appeal. “1. That on the facts and in circumstances of the case, the Ld. appellate authority grossly erred in deciding the appeal ex-parte without providing sufficient opportunity of being heard. 1.1 That on the facts in circumstances of the case, the Ld. appellate authority grossly erred in relying the version of the ITA 05/JP/2020_ Shri Mohan Lal Mutha, Jaipur Vs ITO, Ward 6(1), Jaipur 2 assessing officer and not deciding the appeal on merits and material on record. 2. That on the facts and circumstances of the case, the learned lower authorities grossly erred in holding that the assessee was liable for deducting tax deduction at source (TDS) on rent paid to LMJ services towards warehousing charges when the assessee was not liable for deduction of TDS on account of amount paid to LMJ services towards warehousing charges, it does not fall within the definition of rent. 2.1 That since there is no liability for TDS on the said amount, therefore the disallowance u/s 40(a)(ia) of the I.T. Act amounting to Rs. 2,13,040/- is unjustified, bad in law, without material & contrary to the provisions of the I.T. Act. Therefore the disallowance be directed to be deleted. 3. That on the facts and circumstances of the case, the learned commissioner of income tax grossly erred in holding that the liability to pay loan of Rs. 2,88,115/- ceased to exist in the name of Smt. Sunder Devi Mutha & in holding it is as income of the appellant u/s 41(1) of the I.T Act. 3.1 That son of Smt. Sunder Devi Mutha having claimed that he is the son & legal heir of Smt. Sunder Devi Mutha and amount recoverable by him therefore Ld. commissioner of income tax is unjustified in observing that no proof was submitted that Shri. Prem Chand Mutha is son of Smt. Sunder devi Mutha. ITA 05/JP/2020_ Shri Mohan Lal Mutha, Jaipur Vs ITO, Ward 6(1), Jaipur 3 3.2 That neither Smt Sunder Devi Mutha during her life time or her legal heir Shri Prem chand Mutha has waived the said credit, confirmation having been filed by him (Prem Chand Mutha) as to credit & amount recoverable, therefore question of cessation of Liability u/s 41(1) does not arise & the impugned addition is without basis, without evidence, contrary to the material on record & the impugned addition of Rs. 2,88,115/- is unjustified, bad in law and deserved to be quashed. 4. The appellant craves leave to add, alter, modify or amend any ground on or before the date of hearing.” 2. The main grievance of the assessee vide ground No. 1 relates to the ex-parte order passed by the ld. CIT(A) without providing sufficient opportunity of being heard. 3. The facts of the case in brief are that the assessee filed the return of income on 17.02.2010 declaring an income of Rs. 2,15,780/-. Later on, the case was selected for scrutiny. The AO framed the assessment at an income of Rs. 7,60,935/- by making the disallowance of Rs. 2,13,040 /- u/s 40(a)(ia) of the Income Tax Act, 1961 (hereinafter referred to Act) and the addition of Rs. 2,88,115/- u/s 41(1) of the Act on account of cessation of liability. 4. Thereafter, the matter travelled up to the ITAT in ITA No. 301/JP/2015 wherein the case was set aside to the ld. CIT(A) vide order dated 06.11.2015. In compliance to the directions of ITAT, the ld. CIT(A) decided the appeal ex-parte and sustained the additions made by the AO by observing in para 2.2 to 2.2.2 of the impugned order as under:- ITA 05/JP/2020_ Shri Mohan Lal Mutha, Jaipur Vs ITO, Ward 6(1), Jaipur 4 “2.2 In this case quantum proceeding was decided by my predecessor, which was decided on 29.01.2015, appeal no. 417/11- 12. Against this order assessee filed his appeal before Hon'ble, ITAT, Jaipur. Vide order dated 06.11.2015, ITA No. 301/JP/2015, Hon'ble ITAT has set aside the matter to the file of CIT(A) to decide the appeal of the assessee afresh after giving proper opportunity. 2.2.1 In this case, ample numbers of opportunities were given to the appellant to appear and present his case which are tabulated below:- Date of hearing fixed Remarks 16.07.2019 Authorized Representative filed an adjournment letter. Adjourn to 16.08.2019. 16.08.2019 Authorized Representative filed an adjournment letter. Adjourn to 09.09.2019. 09.09.2019 Authorized Representative filed an adjournment letter. Adjourn to 12.09.2019. 12.09.2019 Authorized Representative filed an adjournment letter. Adjourn to 14.10.2019. 14.10.2019 None Attended. 2.2.2 In view of the above, it is clear that the appellant and the Authorized Representative are not interested in contesting the appeal and in-spite of sufficient opportunity and time have not submitted any details what so ever. It is also relevant to state ITA 05/JP/2020_ Shri Mohan Lal Mutha, Jaipur Vs ITO, Ward 6(1), Jaipur 5 that earlier also, appeal was decided ex-parte, thus it seems that assessee is not serious to persue the appeal. On merits it seems that assessee has nothing to say in support of grounds of appeal taken. After careful consideration of the order, I find that Assessing Officer has rightly made the addition, hence ground of appeal is dismissed.” 5. Now, the assessee is in appeal. The learned counsel for the assessee submitted that no opportunity of being heard was provided by the ld. CIT(A) who decided the appeal ex-parte and sustained, the additions made by the AO, without discussing issues raised by the assessee on merits. 6. In her rival submissions, the ld. DR strongly supported the impugned order and submitted that the assessee did not appear before the ld. CIT(A) in spite of the various opportunities of being heard given to him. Therefore, there was no alternative except to decide the appeal ex-parte. 7. After hearing both the parties and perusing the material available on record, it is noticed that the ld. CIT(A) mentioned in para 2.2.1 the impugned order, that when the case was fixed for hearing on 12.09.2019, the Authorized Representative filed an application for adjournment and the case was adjourned to 14.10.2019. However, it is not clear as to whether the said date of hearing was communicated to the assessee not or and the notice for hearing on the said date was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim ‘audi alteram partem’. We are therefore by keeping in view the principles of natural justice deem it appropriate to the set aside, this case back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. ITA 05/JP/2020_ Shri Mohan Lal Mutha, Jaipur Vs ITO, Ward 6(1), Jaipur 6 We also direct the assessee to co-operate and not to seek unwarranted or undue adjournment. 8. In the result, this appeal of the assessee is allowed for statistical purposes. (Order pronounced on 02/12/2021 ) Sd/- Sd/- ¼lanhi x®lkÃa½ ¼,u-ds-lSuh½ (SANDEEP GOSAIN) (N.K. SAINI) U;kf;d lnL;@Judicial Member mik/;{k@Vice President Tk;iqj@ Jaipur fnukad@Dated:- 02/12/2021 *Ganesh Kumar vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Shri Mohan Lal Mutha, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 6(1), Jaipur 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr¼vihy½@The CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 05/JP/2020) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar