Pati Enterprisers, Cuttack V. ITO, Cuttack

ITA 530/CTK/2013

• Counselvise Citation: 53022114 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 25-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-11-2013
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK [ , . . , BEFORE SHRI SUNIL KUMAR YADAV , J M & SHRI B.P.JAIN , A M ./ ITA NO. 530 /CTK/201 3 ( [ [ / ASSESSMENT YEAR : 200 8 - 09 ) M/S PATI ENTERPRISERS, BADAMBADI, CUTTACK - 12 VS. ITO, WARD - 2(1), CUTTACKI ./ ./ PAN/GIR NO. : A LHPP 9849 A ( / APPELLANT ) .. ( / RESPONDENT ) [ /ASSESSEE BY : NONE /REVENUE BY : SHRI K.K.NATH / DATE OF HEARING : 2 5 TH MAY , 201 5 / DATE OF PRONOUNCEMENT 27 TH MA Y ,2015 / O R D E R PER SUNIL KUMAR YADAV (J.M) : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A ) , CUTTACK, DATED 19 - 8 - 2013 FOR THE ASSESSMENT YEAR 2008 - 09, INTER ALIA , ON FOLLOWING GROUNDS : - 1. THAT THE DEMAND RAISED BY BOTH THE LOWER FORUMS S ILLEGAL ONE - SIDED, UNJUSTIFIED AND UN CALLED FOR IN THE EYES OF LAW. 2. THAT THE ORDER PASSED BY THE LEARNED ASSESSING AUTHORITY U/S 144 OF I.T ACT IS ILLEGAL AND WITHOUT APPLICATION OF MIND. THE STATUTORY DEDUCTION U/S 80 C OF I.T ACT HAS NOT ALLOWED BY THE I.T.O AND THE SAME PROCEDURE ALSO FOLLOWED BY THE LEARNED CIT(A), CUTTACK. 3. THAT WITHOUT ANY CONCRETE BASE BOTH THE LOWER FORUMS PASSED THE ORDER AND DEMANDED A HUGE AMOUNT WHICH IS ILLEGAL AND UNCALLED FOR IN THE EYES OF LAW, THE ORDER VIOLATE THE PRINCIPLE OF NATURAL JUSTICE A ND FUNDAMENTAL RIGHTS. 4. THAT THE LEARNED ITO WITHOUT GO NE INTO THE DEEP, JUST ADDED 10 % UPON THE GTO AND DETERMINED THE INCOME AS RS . 10.95,200.00 WI THOUT ALLOWING DEDUCTION U/S 80 C OF I.T.ACT WHICH IS CLEAR INJUSTICE IN THE EYES OF LAW. ITA NO. 530/13 2 5. THAT THE LEARNED CIT(A) DIDN'T CONSIDER THE GROUNDS MADE BEFORE HIM SYMPATHETICALLY AND JUDICIOUSLY AND CONFIRMED THE ASSESSMENT ORDER ON SOME FLIMSY GROUNDS WITHOUT GOING IN TO THE MERITS OF THE CASE. 6. THAT AFTER RECEIPT OF THE APPEAL ORDER THE LEARNED ASSE SSING OFFICER IS PRESSING HARD FOR COLLECTION OF THE DISPUTED DEMAND SINCE THE FIRST APPEAL HAS BEEN CONFIRMED. FURTHER HE IS GOING TO IMPOSE PENALTY ON THE APPELLANT AND MAY TAKE COERCIVE ACTION FOR RECOVERY OF THE DISPUTED DEMAND . 2. THIS APPEAL WAS L ISTED FOR HEARING ON 2 5 - 5 - 2015 , HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE . A REQUEST WAS MADE FROM ONE OF THE ADVOCATE THAT THE ASSESSEES COUNSEL IS NOT IN A POSITION TO ATTEND THE HEARING, THEREFORE, HEARING MAY BE ADJOURNED. 3 . WE HAVE CAREFULLY EXAMINED THE ORDER S OF THE AUTHORITIES BELOW AND FOUND THAT DUE TO NONE APPEAR ANCE ON BEHALF THE ASSESSEE BEFORE THE AO, THE AO FRAMED THE ASSESSMENT U/S.144 OF THE ACT EX - PARTE . BEFORE THE CIT(A) ALSO NO ONE APPEARED ON BEHALF OF THE ASSESSEE AND THE CI T(A) DISMISSED THE APPEAL OF THE ASSESSEE. WE HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND FOUND THAT THE AO HAS ESTIMATED THE NET PROFIT OF THE ASSESSEE BUT THERE WAS NO BASIS FOR THE ESTIMATION OF THE NET PROFIT AND BEFORE THE CIT(A) ASSESSEE HAS NOT PRODUCED ANYTHING ON RECORD AS TO ON WHAT BASIS THE ESTIMATION CAN BE MADE. IT IS SETTLED PROPOSITION OF LAW THAT WHEN EVE R THE BOOKS OF ACCOUNT WERE NOT PRODUCED BEFORE THE AO, THE OPTION LEFT BEFORE THE AO TO REJECT THE BOOKS OF ACCOUNT AND IN THE INSTA NT CASE AFTER REJECTION OF BOOKS OF ACCOUNT ESTIMATION OF NET PROFIT WAS DONE BUT FROM A PERUSAL OF THE ORDER OF THE CIT(A), WE ARE OF THE VIEW THAT THE CIT(A) HAS PASSED AN EX - PARTE ORDER WITHOUT EXAMINING AS TO ON WHAT ITA NO. 530/13 3 BASIS ESTIMATION WAS DONE. T HEREFOR E, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE CIT(A). WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATE T HE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN THE LIGHT OF THE PAST RECORD OF THE ASSESSEE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPE N COURT ON THIS 27 / 05 / 201 5 . SD/ - SD/ - ( . . ) ( B. P. JAIN ) ( ) ( SUNIL KUMAR YADAV) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 /0 5 / 201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT , CUTTACK 6. [ / GUARD FILE. //TRUE COPY//