Reshma Builders (P) Ltd., Kanpur V. Asstt. Commissioner of Income Tax , Kanpur

ITA 579/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1669 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 26-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 579/LKW/2012 ASSESSMENT YEAR: 2007 - 08 RESHMA BUILDERS (P) LTD. 7/103, SWAROOP NAGAR KANPUR V. ACIT CENTRAL CIRCLE VI KANPUR PA N: AAACR6388R (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI. JAGDISH, D.R. DATE OF HEARING: 28.01.2013 DATE OF PRONOUNCEMENT: 29.01.2013 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOU S GROUNDS, WHICH ARE AS UNDER: - 1. BECAUSE THE 'CIT(APPEALS)' ON A DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE PARTICULARLY THAT THERE DID NOT EXIST ANY VALID ORDER PASSED UNDER SECTION 127(2) OF THE ACT, TRANSFERRING THE JURISDICTION IN THE CASE OF THE APPELLANT AND CENTRALIZATION OF THE SAME AT KANPUR, SHOULD HAVE HELD THAT THE ASSESSMENT ORDER DATED 31.12.2008 PASSED BY ASSTT. CIT, CENTRAL CIRCLE - VI, KANPUR, (NOW CENTRAL CIRCLE - II, KANPUR) WAS VOID AB - INITI O . WITHOUT PREJUDICE TO THE AF ORESAID : - 2 - : 2. BECAUSE THE 'CIT(APPEALS)' HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT INCOME EARNED BY THE 'APPELLANT' BY WAY OF EXPLOITATION OF COMMERCIAL ASSET, WAS RIGHTLY ASSESSED UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' (AS AGAINST INCOME FROM BUSINE SS AS SHOWN BY IT). 3. BECAUSE IN RELATION TO THE SUMS SO RECEIVED BY THE 'APPELLANT' (FROM EXPLOITATION OF COMMERCIAL ASSET), THE 'APPELLANT' HAD ALWAYS BEEN ASSESSED UNDER THE HEAD 'INCOME FROM BUSINESS' AND VARIATION IN THE MANNER OF ASSESSMENT IN THIS YEAR, WAS WHOLLY UNCALLED FOR AND UNJUSTIFIED. 4. BECAUSE THE 'CIT(APPEALS)' IN DUE EXERCISE OF HIS PLENARY POWERS SHOULD HAVE ACCEPTED THE 'APPELLANT'S' CLAIM ABOUT ITS OWNERSHIP OVER THE CASH AMOUNTING TO RS.1,59,000 AS HAD BEEN SEIZED BY THE AUTHORIZED OFFICERS DURING THE COURSE OF SEARCH AND SEIZURE ACTION CARRIED OUT IN THE 'GROUP' ON 17.10.2006, WHICH STOOD CLASSIFIED UNDER THE HEAD 'LOANS AND ADVANCES' AND SUB - HEAD 'CASH SEIZED BY THE INCOME - TAX AUTHORITIES', BY HOLDING THAT VIEW TO THE CONTRARY (AS HAS BEEN TAKEN BY THE ASSESSING OFFICER) WAS WHOLLY ERRONEOUS. 5. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2 . THIS APPEAL CAME UP FOR HEARING ON 28.1.2013, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE . ON A CAREFUL PERUSAL OF RECORD, IT IS NOTICED THAT NOTICE OF HEARING WAS ISSUED THROUGH REGISTERED A/D ON TWO TIMES, BUT IT WAS RECEIVED BACK UN - SERVED WITH THE REMARK LEFT WITHOUT ADDRESS. SINCE THE TRIBUNAL HAS MADE A SINCERE EFFORT TO GET THE NOTI CE SERVED UPON THE : - 3 - : ASSESSEE AT THE GIVEN ADDRESS, BUT NOTICE COULD NOT BE SERVED UPON THE ASSESSEE. THEREFORE, I HAVE NO OPTION BUT TO HEAR THE APPEAL EX - PARTE QUA THE ASSESSEE. ACCORDINGLY THE REVENUE WAS HEARD. 3 . ON A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A), I FIND THAT IN HIS ENTIRE ORDER THE LD. CIT(A) HAS REPRODUCED THE GROUNDS OF APPEAL AND THE SUBMISSIONS RAISED BY THE ASSESSEE. IN THE LAST THREE LINES, HE HAS GIVEN HIS FINDING. IN HIS FINDING, THE LD. CIT(A) HAS NOT GIVEN ANY REASON AS TO W HY HE HAS AGREED WITH THE VIEW TAKEN BY THE ASSESSING OFFICER WITH REGARD TO THE NATURE OF RECEIPTS RECEIVED BY THE ASSESSEE. SINCE THE ORDER OF THE LD. CIT(A) IS VERY CRYPTIC AND WITHOUT ANY REASON, I SET ASIDE HIS ORDER AND DIRECT HIM TO RE - ADJUDICATE T HE ISSUE BY PASSING A SPEAKING ORDER 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 OPEN COURT ON 29.1.2013. S D/ - [ S UNIL KUMAR Y ADAV ] JUDICIAL MEMB ER DATED: 29.1.2013 JJ: 2801 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR