Mohd Idris Khan , Nizamabad V. Income Tax Officer, Ward-1, Nizamabad

ITA 529/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3045 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 19-02-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 15-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SANDEEP TOSHNIWAL
• Keywords: Set aside
• Section: 143(3); 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A - SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO. 529/HYD/2019 ASSESSMENT YEAR: 2012 - 13 MOHD. IDRIS KHAN, NIZAMABAD. PAN: AVEPM 6166 C VS. ITO, WARD - 1, NIZAMABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI SANDEEP TOSHNIWAL REVENUE BY: SRI SUNIL KUMAR PANDEY, DR DATE OF HEARING: 19/02/20 20 DATE OF PRONOUNCEMENT: 09 /0 3 /2020 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 1, HYDERABAD IN APPEAL NO.10134/18 - 19/ITO, WARD - 1/NZB/CIT(A) - 1/HYD/2018 - 19, DATED 16/01/2019 PASSED U/S. 143(3) R.W.S 147 OF THE ACT FOR THE A.Y. 2012 - 13. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE EX - PARTE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ASSESSMENT ORDER PASSED BY THE ITO, NIZAMABAD FOR THE A.Y. 2012 - 13 UNDER THE IT ACT, 1961 IS CONTRARY TO LAW, AGAINST THE WEIGHT OF EVIDENCE AND PROBABILITIES OF THE CASE. 2. THAT THE LAW LAID DOWN BY THE HON BLE SUPREME COURT THAT THE EX - PARTE APPEAL ORDER SHOULD BE FAIR, REASONABLE AND JUDICIOUS ONE WITHIN THE PERMISSIBLE LIMITS OF THE INCOME TAX ACT. MERELY BECAUSE THE PETITIONER DID NOT ATTEND TO THE NOTICE ISSUED BY THE CIT(A) IT DOES NOT MEAN THAT THE C IT(A) CAN GO ON CONFIRMING THE ASSESSMENT ORDER. THE ORDER SHOULD WITHSTAND IN JUDICIAL SCRUTINY IN NATURE AND NOT 2 ARBITRARY ONE. BY LOOKING TO THE ABOVE SAID ORDER, THE INCOME TAX OFFICER ORDER AND THE EX - PARTE ORDER PASSED CIT(A), VAGUE AND DID NOT APP RECIATE THE CONTENTIONS AND THUS CONFIRMING THE ADDITIONS IS QUITE CONTRARY TO LAW, WITHOUT COGENT REASONS. THIS ITSELF IS EVIDENT TO PROVE THAT THE ITO NOR THE CIT(A) DID NOT EVEN LOOK TO THE INCOMES PROPERLY AND MADE ARBITRARY ASSESSMENT TO CREATE HURDL ES TO PETITIONER TO RUN FROM PILLAR TO POST WITH ARBITRARY ARTIFICIAL DEMANDS. 3. THAT THE INCOME TAX OFFICER FILED TO LOOK TO THE REASONS RECORDED FOR THE PURPOSE OF REOPENING OF THE ASSESSMENT ORDER AND JUMPED OVER TO THE OTHER IRRELEVANT ADDITIONS, WHERE WERE NOT THE REASONS FOR REOPENING, IT IS NOT SUSTAINABLE IN THE EYE OF LAW. THUS, THE ASSESSMENT ORDER OF THE ITO IS QUITE CONTRARY TO THE NORMS LAID DOWN BY THE IT ACT AND GOING BEYOND THE REASONS OF THE IT ACT, IS NOT SUSTAINABLE IN TH E EYES OF LAW AND LIABLE TO BE SET ASIDE. 4. THAT THE PETITIONER IS READY TO SUBSTANTIATE HIS DEPOSITS DEPOSITED IN THE BANK FROM OUT OF ITS SURPLUS CAPITAL EARNED PRIOR TO THE ASSESSMENT YEAR 2012 - 13 OUT OF THE SALE PROCEEDS O F TIMBER, TIMBER LOGS WHICH T OOK PLACE WITHIN THE STATE AS WELL AS OUTSIDE THE STATE AND THE SAID DEPOSITS CANNOT BECOME INCOME AND BE SUBJECTED TO INCOME TAX ONCE AGAIN. THUS, THE ASSESSMENT ORDER PASSED BY THE INCOME TAX OFFICER IS HARSH, CAPRICIOUS IN NATURE AND THE SAME IS LIABLE TO BE SET ASIDE. 5. THAT THE PETITIONER SUBMITTED CASH FLOW STATEMENT AND BANK FUND STATEMENT ON 28/12/2017, PASSES THE ASSESSMENT ORDER ON 29/12/2017 BY MAKING ADDITION ON BANK DEPOSITS, WHICH IS QUITE CONTRARY TO LAW AND LIABLE TO BE SET ASIDE. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN O RDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL . LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED BY STATING THAT SEVERAL OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED B EFORE THE LD. CIT (A). IT WAS FURTHER 3 SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFEREN CE AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. IT IS APPARENT FROM THE ORDER OF THE LD. CIT(A) THAT HE HAD POSTED THE CASE ON SEVERAL OCCASIONS. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATES OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. I N THIS SITUATION, I DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, NATURE OF ADDITION AND PETTY BUSINESS OF THE ASSESSEE, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE F ILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FA ILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 4 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 09 TH MARCH , 2020. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 09 TH MARCH , 2020. OKK COPY TO: - 1) MOHD . IDRIS KHAN, 9 - 20 - 354, MUJAHID NAGAR, BODHAN ROAD, MAREDPALLY, NIZAMABAD 503001. 2) INCOME TAX OFFICER O/O. ITO, WARD - 1, AAYAKAR BHAVAN, SUBHASH NAGAR, NIZAMABAD. 3) THE CIT(A) - 1 , HYDERABAD 4) THE PR. CIT - 1 , HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE