SHRI VIRENDRA KUMAR SHARMA, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 533/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1600 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Assessee Lawyers: ASHOK KR GUPTA
• Keywords: Business expenditure; Opportunity of being heard; Principle of natural justice; Corroborative evidences
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 533/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 VIRENDRA KUMAR SHARMA, 13, GOVIND NAGAR, EAST AJMER ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD-7(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ARLPS 1799 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ASHOK KR. GUPTA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/11/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 26/11/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20/03/2018 OF LD. CIT(A)-3, JAIPUR FOR THE A.Y. 201 4-15. THE ASSESSEE HAS RAISED THE SOLITARY GROUND AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD.CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE IMPUGNED ORDER U/S 143(3) DATED 30.06.2016 WHICH WAS BAD IN LAW FOR WANT OF JURISDI CTION AND VARIOUS OTHER REASONS. 2. ON THE FACTS AND IN 'THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.4,00 ,000/-. ON ACCOUNT OF UNEXPLAINED CAPITAL INTRODUCED IN THE CAPITAL AC COUNT IN CASH. ITA 533/JP/2018_ VIRENDRA KR. SHARMA VS ITO 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE DISALLOWANCE FOR RS . 2,43,171/- ON ACCOUNT OF EXPENSES OF BANK INTEREST/CHARGES NOT TR EATED AS BUSINESS EXPENDITURE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 1,04,354/- ON ACCOUNT OF LOSS BY ACCIDENT TREATED TRANSIT LOSS ON ACCOUNT OF PURCHASE OF GOODS, IS NOT ALLOWABLE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 2,4 0,000/- ON ACCOUNT OF HOUSEHOLD EXPENSES AS MADE FROM UNEXPLAINED SOUR CE, FURTHER IT IS ALSO ON HIGHER SIDE LOOKING TO THE LIVING STANDA RD OF THE ASSESSEE. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 240 000/- ON ACCOUNT OF HOUSEHOLD EXPENSES WITHOUT PROVIDING TELESCOPY B ENEFIT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) HAS GROSSLY ERRED IN DECIDING THE APPEAL WITHOUT PROVID ING SUFFICIENT OPPORTUNITY OF BEING HEARD BY IGNORING THE FUNDAMEN TAL RIGHT OF NATURAL JUSTICE. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN DECIDING THE APPEAL WITHOUT PROVID ING SUFFICIENT OPPORTUNITY OF FILLING THE SUBMISSIONS BEFORE THEM. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE CHARGING INTEREST U /S 234 A/B/C. 10. THAT THE APPELLANT CRAVED THE RIGHT TO ADD, DEL ETE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING OF EDIBLE OIL. THE ASSESSEE FILED HIS RETURN OF INCOME ON 15/11/2014 DECLARING TOTAL INCOME OF RS. 4,51,670/- . THE ASSESSING ITA 533/JP/2018_ VIRENDRA KR. SHARMA VS ITO 3 OFFICER WHILE COMPUTING THE ASSESSMENT UNDER SECTIO N 143 (3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON 30 TH JUNE 2016 MADE VARIOUS ADDITIONS ON ACCOUNT OF INTRODUCTION OF CAPITAL, DI SALLOWANCE OF EXPENDITURE AND IN LOW DRAWINGS FOR HOUSEHOLD EXPENSE S. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A). HOWEVER, NO BODY WAS APPEARED ON BEHAL F OF THE ASSESSEE BEFORE THE LD. CIT(A) DESPITE THE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE. ACCORDINGLY THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE AND SUMMARILY. 4. BEFORE US THE LD. AR OF THE ASSESSEE HAS SUBMITT ED THAT THE NOTICES OF HEARING WERE SENT BY THE LD. CIT(A) TO THE LD AR A ND NOT TO THE ASSESSEE, THEREFORE THE ASSESSEE WAS NOT AWARE OF THO SE NOTICES ISSUED BY THE LD. CIT(A). HE HAS FURTHER SUBMITTED THAT DUE TO SOME DISPUTES BETWEEN THE ASSESSEE AND THE LD. AR OF THE ASSESSEE PRESENTED, HE DID NOT APPEAR BEFORE THE LD. CIT(A) AND ALSO NOT INFORM ED THE ASSESSEE ABOUT THE HEARING BEFORE THE LD. CIT(A). HENCE THE L D. AR OF THE ASSESSEE HAS PLEADED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY OF HEARING BEFORE THE LD. CIT(A). 5. ON THE OTHER HAND THE LD. DR HAS VEHEMENTLY OPPO SED TO THE REQUEST OF GRANTING OF ONE MORE OPPORTUNITY TO THE ASSESSEE FOR HEARING. ITA 533/JP/2018_ VIRENDRA KR. SHARMA VS ITO 4 THE LD. DR HAS SUBMITTED THAT THE LD. CIT(A) HAD GIVE N THREE OPPORTUNITIES OF HEARING TO THE ASSESSEE AND ON ALL THREE OCCASIONS, NONE HAD APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSEE HIMSELF HAS GIVEN THE ADDRESS OF HIS AUTHORIZED REPRESENTATIVE FOR TH E PURPOSE OF SERVICE OF NOTICES AND THEREFORE HE CANNOT TAKE THE EXCUSE AND A PLEA OF NON- APPEARANCE BEFORE THE LD. CIT(A) DUE TO LACK OF KNOWL EDGE OF THE HEARING. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S RELEVANT MATERIAL ON THE COURT WE NOTE THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) ON 31 ST JANUARY 2018, 23/02/2018 AND 19/03/2018 BUT NONE APPEARED ON BEHALF OF THE ASSES SEE ON ALL 3 DATES OF HEARINGS. THERE IS NO DISPUTE THAT NOTICES WERE ISSUE D AT THE ADDRESS OF THE AR OF THE ASSESSEE AND NOT TO THE ASSESSEE AS I T WAS GIVEN IN THE FORM NUMBER 35. HENCE DESPITE THE NOTICES ISSUED AT THE ADDRESS OF THE AR OF THE ASSESSEE BUT NOBODY HAS APPEARED BEFORE T HE LD. CIT(A) AND CONSEQUENTLY THE APPEAL OF THE ASSESSEE WAS DISMISSE D FOR WANT OF PROSECUTION. THE RELEVANT PART OF THE IMPUGNED ORDER IN PARAGRAPH 4 IS AS UNDER: 4. THE PRESENT APPEAL IS AGAINST THE ASSESSMENT OR DER U/S 143(3) OF THE ACT. I HAVE CAREFULLY PERUSED THE GROUNDS OF APPEAL AND THE ASSESSMENT ORDER. AS ALREADY DISCUSSED ABOVE, THE APPELLANT HAS FAILE D TO OFFER ANY EXPLANATION FOR SUBMISSION IN SUPPORT OF THE GROUND S RAISED IN THIS ITA 533/JP/2018_ VIRENDRA KR. SHARMA VS ITO 5 APPEAL NOR ANY SUPPORTING EVIDENCES WERE PRODUCED B Y HIM DESPITE ADEQUATE OPPORTUNITY HAVING BEEN PROVIDED. IN THIS CONNECTION, RELIANCE MAY BE PLACED UPON TH E DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H .M. ABDULALI (1973) 90 ITR 271 WHEREIN THE HONBLE COURT HAS HELD THAT HE APPELLATE AUTHORITY CANNOT SUBSTITUTE ITS OWN JUDGMENT IN PLA CE OF THE JUDGMENT OF THE A.O. UNLESS IT IS SHOWN THAT THE JUDGMENT OF TH E A.O. WAS BIASED, IRRATIONAL, VINDICTIVE OR CAPRICIOUS. IN THE INSTANT CASE THE APPELLANT HAS NOT ABLE TO SHOW THAT THE DECISION OF THE A.O. WAS ARBITRARY, BIASED, IRRATIONAL, VIND ICTIVE OR CAPRICIOUS WITHOUT ANY BASIS, I FIND NO REASON TO INTERFERE WI TH THE DECISION OF THE A.O. THUS IT IS MANIFEST FROM THE IMPUGNED ORDER THAT THE APPEAL OF THE ASSESSEE WAS NOT DECIDED ON THE MERITS BUT IT WAS DIS MISSED FOR WANT OF THE PROSECUTION. HAVING REGARD TO THE FACTS AND CIR CUMSTANCES OF THE CASE WHEN THE APPEAL WAS DISMISSED FOR WANT OF PROSECUTION, WE ARE OF THE CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY OF HEARING BEFORE THE LD. CIT( A). ACCORDINGLY WE SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT(A) TO GIVE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE TO PRESENT H IS CASE AND THEN DECIDE THE APPEAL ON THE MERITS. WE MAY CLARIFY THA T IN CASE THE ASSESSEE FAILS TO APPEAR BEFORE THE LD. CIT(A) THE OPPORTUNI TY GRANTED BY US SHALL STAND VACATED. ITA 533/JP/2018_ VIRENDRA KR. SHARMA VS ITO 6 6. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTI CAL PURPOSES ONLY. ORDER IS PRONOUNCED IN OPEN COURT ON 26 TH NOVEMBER, 2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26 TH NOVEMBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI VIRENDRA KUMAR SHARMA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO WARD-7(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ 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. 533/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR