SHRIMATI TASLEEM KOUSAR, POONCH V. INCOME TAX OFFICER, RAJOURI

ITA 527/ASR/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4740 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 142(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR (CAMP BENCH AT JAMMU) BEFORE: MR. JUSTICE P.P. BHATT, HONBLE PRESIDENT AN D SHRI N.K. SAINI, HONBLE VICE PRESIDENT ITA NOS. 526 & 527/ASR/2018 ASSESSMENT YEAR : 2010-11 TASLEEM KOUSAR, D/O SH. AHMAD ALI RATHER PROP: NADEEM TRADERS, NAI BASTI POONCH VS. THE ITO RAJOURI PAN NO. AAOZP7105M APPELLANT RESPONDENT ASSESSEE BY : SHRI JOGINDER SINGH, CA REVENUE BY : SHRI RAKESH KUMAR DR DATE OF HEARING : 04/02/2021 DATE OF PRONOUNCEMENT : 04/02/2021 ORDER PER JUSTICE P.P. BHATT, PRESIDENT : THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DT. 20/08/2018 OF THE LD. CIT(A), JAMMU. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEALS FILED B Y THE ASSESSEE ARE BARRED BY LIMITATION BY THREE DAYS. 3. THE ASSESSEE SUBMITTED THE CONDONATION APPLICATIONS S TATING THEREIN AS UNDER: WITH HUMBLE SUBMISSION MAY I REQUEST YOUR HONOR THA T I HAVE PREFERRED AN APPEAL BEFORE THE ITAT, AMRITSAR BENCH. I'M LIVING IN A FAR FLUNG AREA OF JAMMU & KASHMIR STATE I.E. NAIBASTI- DISTT: POONCH, NEAR THE BORDER. IT IS IMP OSSIBLE FOR ME TO HANDOVER THE APPEAL PAPER PERSONALLY AND ACCORDINGLY I SENT THE SAID AP PEAL PAPERS THROUGH SPEED POSTDATED: 26.10.2018 WELL BEFORE THE DUE DATE OF F ILING OF APPEAL. HOWEVER THE SAME HAS REACHED AMRITSAR BEFORE YOUR HONOR LATE BY 3 DAYS A S PRESCRIBED UNDER RULES. THE DELAY WAS NOT INTENTIONAL. DUE TO THIS BONAFIDE REASON I REQUEST YOUR HONOR TO KINDLY CONDONE THE DELAY OF 3 DAYS IN MY CASE. SD/- (TASLEEM KOUSAR) 2 4. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR TH E ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATIONS AND REQUESTED TO CONDONE THE DELAY. 5. IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH OPPOSED THE CONDONATION OF DELAY, BUT COULD NOT CONTROVERT THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIE S, WE ARE OF THE VIEW THAT THE DELAY FOR SHORT PERIOD OF THREE DAYS WAS BEYOND THE CONT ROL OF THE ASSESSEE AS THE APPEAL PAPERS THROUGH SPEED POST / COURIER WERE SENT WELL BEFORE THE DUE DATE OF FILING THE APPEAL, THEREFORE THE DELAY IS CONDONED AND THE APPEAL S ARE ADMITTED. 7. THE APPEAL IN ITA NO. 526/ASR/2018 IS ON QUANTUM ADD ITION WHILE THE ITA NO. 527/ASR/2018 RELATES TO THE PENALTY. 8. IN BOTH THE APPEALS THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING APPRO PRIATE OPPORTUNITY OF BEING HEARD. 9. THE GROUNDS RAISED IN ITA NO. 526/ASR/2018 ARE AS U NDER: 1) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE THE LD. CIT(A) JAMMU HAS ERRED BOTH IN LAW AND ON FACTS OF THE CAS E THAT THE NOTICE FOR HEARING WAS ISSUED ON 06.08 2018 FOR FIXING THE CASE FOR 14/08/ 2018 WAS NEVER RECEIVED ON OR BEFORE THE SAID DATE I.E. 14/08/2018. THE APPELLATE ORDER HAS BEEN PASSED WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE THE LD. CIT(A) JAMMU HAS ERRED BOTH IN LAW AND ON FACTS OF THE CAS E IN CONFIRMING THE ASSESSMENT OF INCOME AT RS 13,52,030/- AFTER APPLYI NG NET PROFIT RATE @8% ON TOTAL VALUE OF IMPORTS AMOUNTING TO RS 1,69,00,371 /-. IGNORING THE GOODS EXPORTED UNDER BARTER SYSTEM . 3) THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE THAT THE LD. CIT(A) HAS ERRED IN APPLYING 8% RATE WITHOUT MENTIONING AN Y COMPARABLE CASE WHERE THE PROFIT HAS BEEN DECLARED IN THE SIMI LAR TRADE OR NATURE OF BUSINESS. 4) THAT THE APPELLANT CRAVES TO LEAVE TO ADD, AMEND , MODIFY, DELETE ANY OF THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING A ND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3 10. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF INFORMATION THAT THE ASSESSEE HAD BEEN CARRYING ON LOC TRADE AND NOT REFLECTIN G INCOME FROM THIS TRADE, THEREFORE NOTICE UNDER SECTION 142(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) WAS ISSUED ON 14/03/2012 TO THE ASSESSE E FOR FILING THE RETURN OF INCOME. SINCE THE ASSESSEE HAD NOT FILED THE RETURN OF THE INCOME , THE A.O. INITIATED THE PROCEEDINGS UNDER SECTION 147 R.W.S 148 OF THE ACT. IN RESPONSE TO WHICH THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME. THE A.O. PASSED THE EX PARTE ORDER UNDER SECTION 144 R.W.S 147 OF THE ACT DETERMINING THE INCOME AT RS. 13, 52,030/-. THE A.O. ALSO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. 11. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EXPARTE AND SUSTAINED THE ADDITION MAD E BY THE A.O. 12. NOW THE ASSESSEE IS IN APPEAL. 13. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOT ICE FOR HEARING WAS RECEIVED BY THE ASSESSEE, THEREFORE THE LD. CIT(A) WAS NOT JUST IFIED IN PASSING THE EXPARTE ORDER WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD. IT WAS ALSO SUBMITTED THAT THE A.O. ALSO PASSED THE ASSESSMENT ORD ER EXPARTE WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 14. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPOR TED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSE WAS NON COOPERATIVE, SO, THERE WAS NO ALTERNATIVE EXCEPT TO PASS THE IMPUGNED ORDER EXPARTE. 15. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE I T IS AN ADMITTED FACT THAT THE A.O. PASSED THE ASSESSMENT ORDER EXPARTE AND THE LD. CIT(A) ALSO PASSED THE IMPUGNED ORDER EXPARTE. IT IS NOTICED THAT THE LD. CIT(A) MENTI ONED IN THE IMPUGNED ORDER THAT VARIOUS NOTICES WERE ISSUED TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE AND THAT THE LATEST NOTICE WAS ISSUED ON 07/08/2018 FOR COMPLIANCE ON 14/08/2018. HOWEVER NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICES IS SUED EITHER BY THE A.O. OR BY THE 4 LD. CIT(A) WERE SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED, UNHEARD AS PER THE MAXIM, AUDI ALTERAM PERTAM . 16. WE THEREFORE KEEPING IN VIEW THE PRINCIPLES OF NATUR AL JUSTICE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE O F LD. A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 17. APPEAL IN ITA NO. 527/ASR/2018 RELATING TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS CONSEQUENTIAL TO THE APPEAL ON QUANTUM ADDITION IN ITA NO. 526/ASR/2018, THEREFORE THIS APPEAL IS ALSO SET ASIDE TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION. THE ASSESSEE IS FURTHER DIRECTED TO COOPERATE FULLY IN THE PROCEEDINGS BEFORE THE ASSESSING OFFICER. 18. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED ON 04/02/2021). SD/- SD/- (N.K. SAINI) (JUSTICE P.P. BHA TT) VICE PRESIDENT PRESIDENT DATED : 04.02.2021 VK. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, CAMP BENCH, JAMMU 6. GUARD FILE.