Shri Sudeep Kumar Samaiya, V. ITO. Ward II,

ITA 55/JAB/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82719 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-09-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHIR KUMAR
• Assessee Lawyers: DR H S MODH
• Keywords: Business income; Search and seizure; Period of limitation; Reasonable cause; Time period of passing order
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, S.M.C., JABALPUR BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.55/JAB/2013 ASSESSMENT YEAR: 2005-06 SUDEEP KUMAR SAMAIYA, VS. COMMISSIONER OF INCOME TAX - I, PROP. M/S SAMAIYA TRADING CO., JABALPUR. NAMAK MANDI, SAGAR (M.P.) (PAN: AMYPS 4106 P). (APPELLANT) (RESPONDENT) APPELLANT BY : DR. H.S. MODH RESPONDENT BY : SHRI SUDHIR KUMAR DATE OF HEARING : 24.09.2014 DATE OF PRONOUNCEMENT : 26.09.2014 ORDER BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS C ALLED INTO QUESTION THE CORRECTNESS OF LD. COMMISSIONER OF INCOME TAX (APPE ALS)S ORDER DATED 01.03.2012 PASSED IN THE MATTER OF ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 FOR THE A.Y. 2005-06. 2. BRIEFLY STATED, THE RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF VEGETABLE OIL AND KIRANA . DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPO N TO APPEAR BEFORE THE 2 ITA NO.55/JAB/2013 A.Y. 2005-06 ASSESSING OFFICER AND COMPLY WITH THE REQUISITIONS MADE BY HIM ON A NUMBER OF CASES. HOWEVER, SINCE HE DID NOT AVAIL ANY OF THES E OPPORTUNITIES, THE ASSESSING OFFICER PROCEEDED TO FRAME ASSESSMENT UNDER SECTION 144 OF THE ACT. WHILE DOING SO, THE ASSESSING OFFICER ADOPTED THE N.P. RATE OF 5% ON ESTIMATE BASIS AND ACCORDINGLY MADE ADDITION IN THE BUSINESS INCOME RE TURNED BY THE ASSESSEE. THE ASSESSING OFFICER ALSO NOTED THAT DRAWINGS OF THE A SSESSEE ARE VERY LOW AT RS.48,372/-, ESTIMATED THE MONTHLY EXPENDITURE AT R S.10,000/- PER MONTH AND MADE AN ADDITION OF RS.71,630/-. THE ASSESSING OFFICER FURTHER NOTICED THAT THE ASSESSEE HAS DISCLOSED SUNDRY CREDITORS AT RS.1,55,750/- BUT AS NO DETAILS ARE AVAILABLE, THESE CREDITORS CANNOT BE SUBSTANTIATED. THE ENTIR E AMOUNT SHOWN AT SUNDRY CREDITORS WAS ALSO ADDED TO THE RETURNED INCOME OF THE ASSESSEE. IT WAS IN THIS BACKDROP THAT AS AGAINST THE WITHDRAWAL INCOME OF R S.57,780/- THE ASSESSMENT WAS FRAMED AT RS.4,75,550/-. AGGRIEVED, THE ASSESSEE C ARRIED THE MATER IN APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BUT WITHOUT ANY SUCCESS. SO FAR AS THE EX-PARTE ASSESSMENT BEING FRAMED UNDER S ECTION 144 OF THE ACT IS CONCERNED, THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) UPHELD THE SAME AND WHILE DOING SO, INTER ALIA, OBSERVED AS FOLLOWS:- 3.2 THE COUNSEL IN HIS WRITTEN SUBMISSION HAS CONT ENDED THAT LOOKING TO THE LIMITATION PERIOD THE ASSESSMENT HAD TO BE COMPLETED 3 ITA NO.55/JAB/2013 A.Y. 2005-06 EX-PARTE. THE DAUGHTER OF THE ASSESSEE WAS/IS SUFF ERING FROM THALASSEMIA FOR WHICH PURPOSE SHE WAS REQUIRING FRE QUEST TRANSFUSION OF BLOOD AND ASSESSEE WAS VERY AFRAID AND MENTALLY DISTURBED AND COULD NOT INTIMATE HIS COUNSEL FOR THE HEARING SCHE DULED ON 06-12-07 RESULTING IN AN EX-PARTE ORDER. THE COUNSEL PRAYED THAT IN VIEW OF THE EXTENUATING CIRCUMSTANCES NECESSITATING AN EX-PARTE ORDER A SYMPATHETIC CONSIDERATION IN THE MATTER WAS SOLICIT ED. DECISION : I HAVE GONE THROUGH THE MATERIAL ON RECORD AND S UBMISSION OF THE COUNSEL CAREFULLY. THOUGH, THE REASONING GI VEN BY THE COUNSEL OF THE APPELLANT REGARDING THE APPELLANTS DAUGHTER SUFFERING FROM THALASSEMIA WARRANTS SYMPATHY BUT THE FACT THAT NOT ICES ON AS MANY AS SEVEN OCCASIONS WERE NOT COMPLIED WITH DURING A LON G SPAN OF TIME. ON TWO OCCASIONS, THE APPELLANT WAS REPRESENTED BY THE AR OR BY HIMSELF BUT ONLY TO REQUEST FOR AN ADJOURNMENT WHIC H HAS BEEN GIVEN BY THE ASSESSING OFFICER BUT ON THE ADJOURNED DATES AGAIN THERE WAS NON-COMPLIANCE. IT IS CLEAR FROM THE ASSESSMENT OR DER THAT THE ASSESSING OFFICER WAS LEFT WITH NO CHOICE BUT TO CO MPLETE THE ASSESSMENT U/S 144 AS IT WAS GETTING BARRED BY LIMI TATION. IN VIEW OF THIS, I HOLD THAT THE ASSESSING OFFICER WAS CORRECT IN PASSING THE ORDER U/S 144 AND THERE WAS NO VIOLATION OF NATURAL JUSTI CE. THIS GROUND OF APPEAL IS DISMISSED. 3. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTUAL MATRIX AND ALSO APPLICA BLE LEGAL POSITION. 5. DR. MODH, LD. COUNSEL FOR THE ASSESSEE HAS BEGUN HIS ARGUMENTS BY POINTING OUT THAT THE ASSESSEES ONLY CHILD WAS TERMINALLY I LL AT THE RELEVANT POINT OF TIME AND 4 ITA NO.55/JAB/2013 A.Y. 2005-06 EVENTUALLY PASSED AWAY ON 10.10.2007. HE SUBMITS T HAT THE ONLY CHILD OF THE ASSESSEE WAS GOING THROUGH SUCH AN UNFORTUNATE PHAS E, NON-COMPLIANCE OF THE NOTICES AND REQUISITIONS MADE BY THE ASSESSING OFFI CER WAS DUE TO FACTORS BEYOND ASSESSEES CONTROL. HE ALSO STATES THAT VIDE ORDER DATED 21 ST OCTOBER, 2008 LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS ALSO CONSI DERATE ENOUGH TO DELETE THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT ON THE A SSESSEE FOR NON-APPEARANCE DURING THESE PROCEEDINGS. IN GIVING THIS CONCLUSIO N LD. COMMISSIONER OF INCOME TAX (APPEALS) DID TAKE NOTE OF THE FACT THAT THE AS SESSEES EXPLANATION FOR NOT BEING ABLE TO ATTEND THE PROCEEDINGS WAS CORRECT AND ACCE PTABLE. IT IS THUS POINTED OUT THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE IN NON-APPEARANCE BEFORE THE ASSESSING OFFICER AND NON-COMPLIANCE OF THE REQUISI TIONS MADE BY THE A.O. 6. DR. MODH, LD. COUNSEL FOR THE ASSESSEE SUBMITS, UNDER THESE CIRCUMSTANCES, THE ENDS OF JUSTICE WILL BE MET BY REMITTING THE MA TTER BACK TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATION DENOVO AND ASSESSEE WILL N OW FULLY CO-OPERATE IN EXPEDITIOUS COMPLETION OF ASSESSMENT. 7. SHRI SUDHIR KUMAR, LD. DEPARTMENTAL REPRESENTATI VE, ON THE OTHER HAND, VEHEMENTLY RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 5 ITA NO.55/JAB/2013 A.Y. 2005-06 8. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING NO TED THAT IT WAS BECAUSE OF EXCEPTIONAL AND UNFORTUNATE PERSONAL DIFFICULTIES B EING FACED BY THE ASSESSEE THAT HE COULD NOT CO-OPERATE IN ASSESSMENT PROCEEDINGS. I AM OF THE CONSIDERED VIEW THAT THE MATTER NEEDS TO BE SET ASIDE TO THE FILE O F ASSESSING OFFICER FOR FRESH ADJUDICATION. WHEN A PERSON IS PASSING THROUGH SUC H A DIFFICULT SITUATION AS THE ASSESSEE WAS UNFORTUNATELY PASSING THROUGH, IT DOES HAPPEN THAT EVERYTHING ELSE TAKES THAT SEAT FOR A WHILE AND EVEN THE MOST CRUCI AL ENGAGEMENTS ARE NOT PROPERLY ATTENDED TO. IN THESE CIRCUMSTANCES, NON-APPEARANC E OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AND HIS NON-COMPLIANCE OF THE REQ UISITIONS MADE BY THE ASSESSING OFFICER IS UNDERSTANDABLE. I, THEREFORE, DIRECT THAT THE MATTER BE REMITTED TO ASSESSING OFFICER WITH THE INSTRUCTION AS ABOVE. THE ASSESSEE IS ALSO DIRECTED TO FULLY CO-OPERATE IN EXPEDITIOUS COMPLETION OF ASSES SMENT. 9. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON 26 TH DAY OF SEPTEMBER, 2014. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER DATE: 26 TH SEPTEMBER, 2014 PBN/* 6 ITA NO.55/JAB/2013 A.Y. 2005-06 COPY OF THE ORDER FORWARDED TO :- 1) APPELLANT 2) RESPONDENT 3) CIT (APPEALS) CONCERNED 4) CIT CONCERNED 5) D.R., ITAT, JABALPUR BENCH, JABALPUR 6) GUARD FILE. BY ORDER, ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, JABALPUR