Shri Upendra Singh Keer, V. The I T O, Burhanpur

ITA 515/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1499 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 19-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.515/IND/2008 A.Y. 2005-06 UPENDRA SINGH KEER, BURHANPUR PAN ADZPK 6940 R APPELLANT VS ITO-BURHANPUR RESPONDENT APPELLANT BY : SHRI MANJEET SACHDEVA, ADVOCATE RESPONDENT BY : SHRI PRADEEP KUMAR MITRA, SR. DR O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-II, INDORE, DATED 24.10.200 ON THE FOLLOWING GROUNDS: 1. THAT THE ORDER PASSED BY LD. CIT(A) CONFIRMING AND MAINTAINING THE ADDITIONS, DISALLOWANCES BY A.O. IS IMPROPER, WRONG & BAD-IN-LAW. 2. THAT THE VARIOUS OBSERVATION OF LD. CIT(A) INDORE REGARDING RELAXATION IN CURFEW 2 AND FAILURE OF APPELLANT TO MAKE COMPLIANCE OF ORDER SHEET ENTRY DATED 24.9.2008 IS NOT MERELY WRONG AND CONTRARY TO ACTUAL FACTS SPECIALLY WHEN SHRI S.K. JAIN SENIOR COUNSEL AND RASIK TARWALA, APPEARED THRICE 3.15PM, 4.30PM & 5.45PM AND LD. CIT(A) INFORMED BUSY. HENCE ORDER IS PASSED WITHOUT GIVING FAIR AND REASONABLE OPPORTUNITY. 3. THAT LD. CIT(A) FAILED TO APPRECIATE AND CONSIDER THE EXPLANATIONS AND SUBMISSIONS AND ERRED IN CONFIRMING AND MAINTAINING ADDITIONS MADE BY A.O. U/S 68. 4. THAT THE LD. CIT(A) ERRED IN APPRECIATING AND CONSIDERING THE FACT THAT APPELLANT HAD AGREED TO SELL 6.56 HEC OF AGRI LAND OF VILLAGE SIRPUR TAHSIL KHAKNAR DIST. BURHANPUR AND A.O. WRONGLY TREATED U/S 68. 5. THAT THE OBSERVATION OF LD. CIT(A) IN CONFIRMING ASSESSING OFFICERS OBSERVATION THAT THE CREDITS/DEPOSITS OF RS.16,35,000/- ARE NOT GENUINE IS WRONG AND WITHOUT GIVING OPPORTUNITY TO EXPLAIN ADDITIONS NEEDS TO BE DELETED. 6. THAT LD. CIT(A) FAILED TO APPRECIATE AND CONSIDER THE EXPLANATION AND THE FACT THAT SHRI 3 GURSHARNSINGH KEER IS ASSESSED TO TAX AND APPELLANT FILED NOT ONLY CONFIRMATION LETTER BUT COPY OF I.T. RETURN FILED, COMPUTATIONS, BALANCE-SHEET AND BANK STATEMENT. 7. THAT LD. CIT(A) ERRED IN CONFIRMING AND MAINTAINING THE ADDITIONS OF RS.1,72,442/- MADE BY A.O. FOR HOUSEHOLD WITHDRAWAL WITHOUT APPRECIATION THE EXPLANATION. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON THE FIL E. THE CRUX OF THE ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE VARIOUS OBSERVATIONS OF LD. CIT(A) REGARDING RELAXATION IN CURFEW AND FAILURE OF APPELLANT TO MAKE COMPLIANCE OF ORDER SH EET ENTRY DATED 24.9.2008 IS NOT MERELY WRONG AND CONTRARY TO ACTUAL FACTS ESPECIALLY WHEN SHRI S.K. JAIN, SENIOR COUNSE L AND RASIK TARWALA, CA APPEARED THRICE AT 3.15PM, 4.30PM & 5.4 5PM AND HE WAS INFORMED THAT THE LD. FIRST APPELLATE AU THORITY IS BUSY. HENCE ORDER IS PASSED WITHOUT GIVING FAIR AND REASONABLE OPPORTUNITY AND AS SUCH LD. CIT(A) COULD NOT APPREC IATE AND CONSIDER THE EXPLANATIONS AND SUBMISSIONS. ON THE O THER HAND, 4 LD. SR. DR RELIED UPON THE ORDER OF THE LD. CIT(A) BUT COULD NOT CONTROVERT THE SUBMISSION OF THE LD. COUNSEL FOR TH E ASSESSEE AND CONTENDED THAT SUFFICIENT OPPORTUNITY WAS GRANT ED TO THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD AND WE FIND THAT SUFFICIENT OPP ORTUNITY WAS NOT GRANTED TO THE ASSESSEE AS THE LD. FIRST APPELL ATE AUTHORITY IN PARA 4.5 OF THE IMPUGNED ORDER HIMSELF HAS MENTIONE D THAT THE REPRESENTATIVE OF THE ASSESSEE CONTACTED HIS OFFICE TO ADJOURN THE PROCEEDINGS FOR FRIDAY I.E. 17.10.2008 AS CURFE W WAS IMPOSED AT BURHANPUR AND WAS RELAXED FOR LIMITED PE RIOD. THE REQUISITE INFORMATION CALLED FOR VIDE ORDER SHEET D ATED 24.9.2008 COULD NOT BE FURNISHED, CONSEQUENTLY, WIT HOUT GOING INTO MERITS OF THE APPEAL, WE ARE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED WITHOUT HEARING OF THE CASE, TH EREFORE, WE REMAND THE ISSUES, RAISED IN THE APPEAL, FOR FRE SH ADJUDICATION TO THE FILE OF THE LD. CIT(A) IN ACCOR DANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BE ING HEARD 5 WILL BE PROVIDED TO THE ASSESSEE AND ASSESSEE IS AT LIBERTY TO FILE ANY EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CASE . THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT ON SOME OF THE ISSUE/ISSUES, THE TRIBUNAL HAS ALREADY TAKEN A DECISION, WHICH WAS NOT CONTROVERTED BY THE REVENUE, THEREFOR E, THE ASSESSEE IS AT LIBERTY TO FILE SUCH DECISION, IF AN Y, BEFORE THE LD. CIT(A) FOR HIS CONSIDERATION. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15.6.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE VYAS!