Shailesh Mani Tripathi, Gorakhpur V. ACIT, Circle - 1, Gorakhpur

ITA 60/VNS/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1390 (ITAT-VARANASI)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 06-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 143(3); 250; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No. 60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi, 384-E Infront of Var- Vadhu Marriage House,AarogyaMandir, ShahpurRapti Nagar, Gorakhpur-273001, U.P. v. ACIT, Circle-1 Gorakhpur, U.P. PAN:AEFPT 5272A (Appellant) (Respondent) Assesseeby: None Revenue by: ShriA.K. Singh, Sr. DR Date of hearing: 24.05.2022 Date of pronouncement: 24.05.2022 O R D E R PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal, filed by assessee, being ITA No. 60/Vns/2019 for assessment year 2013-14, is directed against the appellate order dated 10.09.2018 in Appeal No. CIT(A)/GKP/2016-17 passed by learnedCommissioner of Income Tax (Appeal), Gorakhpur (hereinafter called "theCIT(A)"),for assessment year(ay):2013-14, the appellate proceedingshad arisen before learned CIT(A) from penalty order dated 27.04.2016passed by learned Assistant Commissioner of Income-tax(hereinafter called the “AO”), Circle-1, Gorakhpur, u/s. 271(1)(c) of the Income-tax Act, 1961 ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 2 (hereinafter called "the Act") foray: 2013-14 .This appeal was heard in Open Court through physical hearing mode. 2. The grounds of appeal raised by assesseein memo of appeal filed with Income-Tax Appellate Tribunal, Varanasi (hereinafter called “ the tribunal”) , reads as under : “1. As the ACIT was unjustified imposing the penalty u/s. 271(1)(c). 2. The ACIT has not considered the submission made during the course of hearing. 3. The ACIT has also not considered the Tax deposited by assessee.” 3. The brief facts of the case are that the assessee is a Development Officer in LIC, Gorakhpur. The assessee filed its return of income on 28.03.2014 declaring total income of Rs.67,65,570/-. The regular assessment u/s. 143(3) was framed against the assessee by the Assessing Officer , vide assessment order dated 20.10.2015 assessing total income of the assessee at Rs.78,55,063/- , as detailed hereunder: a. Net Income as per Income tax return Rs.67,65,570/- b. Deduction u/s 80GGA disallowed Rs.8,54,190/- c. Deduction u/s 8OGGC disallowed Rs.1,71,324/- d. Perquisite disallowed Rs.58,496/- e. Interest on Refund Rs.5,483/- f. Total additions Rs.10,89,493/- g. Assessed Income Rs.78,55,063/- 4. Thus it could be seen that AO disallowed deduction u/s. 80GGA to the tune of Rs.8,54,190/- and deduction u/s. 80GGC were also disallowed to the tune of Rs.1,71,324/- , while framing assessment u/s 143(3), while further additions were made by the AO to the income of the assessee on account of perquisites disallowed to the tune of Rs.58,496/- and bringing to tax an ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 3 interest income on refund of income-tax to the tune of Rs.5483/-,which stood added as income by the AO in the hands of the assessee as the same were not declared by the assessee in its return of income filed with the Revenue . The penalty proceedings were initiated by the AO against the assessee u/s. 271(1)(c) r.w.s. 274 of the 1961 Act. The assessee did not participated in penalty proceedings before the AO, which led to the passing of penalty order u/s. 271(1)(c) , dated 27.04.2016 by the AO, wherein the AO levied penalty of Rs.3,36,700/- u/s 271(1)(c) on the assessee. 5. The assessee challenged the aforesaid penalty levied by the Assessing Officer before the ld. CIT(A) by filing first appeal , but there was no appearance by the assessee before the ld. CIT(A) , which led ld. CIT(A) to dismiss the appeal filed by the assessee in limine, by holding as under vide appellate order dated 10.09.2018 : “3. In appellate proceedings several opportunities were allowed to the appellant. Notices were issued to the appellant fixing the appeal for hearing as per provisions of sec 250 of the Act. There was no compliance on part of the appellant till date. The details of opportunities provided to the appellant in the case are tabulated as under:- Date of notice Date of hearing fixed Remarks. 06/11/2017 23/11/2017 Adjournment filed 28/11/2017 None attended 18/01/2018 29/01/2018 None attended 19/02/2018 08/03/2018 None attended 11/06/2018 27/06/2018 None attended ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 4 24/08/2018 07/09/2018 None attended 4. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well Known dictum "VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT". In view of the above mentioned facts and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT Vs. Multiplan India Ltd reported in 38 ITD 320 and decision of Hon'ble MP High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed. 5. Accordingly I have no reasons to interfere with the penalty order passed by the AO. The action of the AO is upheld. Grounds of appeal are dismissed.” 6. Now ,aggrieved by the dismissal of its appeal by ld. CIT(A), the assessee has come in appeal before the tribunal by filing second appeal. None appeared on behalf of the assesseenor any adjournment application was filed on behalf of the assessee, when this appeal was called for hearing before Division Bench, on 24.05.2022. The notices were sent by RPAD and by email, which did not came back un-served. On earlier occasion , when this appeal came up for hearing before DB on 24.03.2022, none appeared on behalf of the assessee nor any adjournment application was filed. The Bench was pleased to grant adjournment with the directions that notices be sent by RPAD and also by email. Then ,this appeal came up for hearing before the DB on 18.04.2022, ShriArun Kumar Yadav, Advocate appeared on behalf of the assesseeand requested for adjournment which was granted by the Division Bench . When ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 5 the appeal came up for hearing before the Division Bench on 24.05.2022 , none appeared on behalf of the assessee despite notices send by RPAD as well as by email. Thus it is clear that the assessee is not vigilant and is not interested in persuing its appeal filed with tribunal. The DB declined to grant any further adjournment on 24.05.2022, and decided to adjudicate this appeal on 24.05.2022 by hearing ld. Sr. DR and after perusing the material on record. 7. We have heard the contention of the ld. Sr.DR and perused the material on record. We have observed that the assessee is a Development Officer in LIC, Gorakhpur. The assessee filed its return of income on 28.03.2014 declaring total income of Rs.67,65,570/-. The regular assessment u/s. 143(3) was framed against the assessee by the Assessing Officer , vide assessment order dated 20.10.2015 assessing total income of the assessee at Rs.78,55,063/- , as detailed hereunder: a. Net Income as per Income tax return Rs.67,65,570/- b. Deduction u/s 80GGA disallowed Rs.8,54,190/- c. Deduction u/s 8OGGC disallowed Rs.1,71,324/- d. Perquisite disallowed Rs.58,496/- e. Interest on Refund Rs.5,483/- f. Total additions Rs.10,89,493/- g. Assessed Income Rs.78,55,063/- Thus it could be seen that AO disallowed deduction u/s. 80GGA to the tune of Rs.8,54,190/- and deduction u/s. 80GGC were also disallowed to the tune of Rs.1,71,324/- by AO while framing assessment u/s 143(3), while further additions were made by the AO to the income of the assessee on account of perquisites disallowed to the tune of Rs.58,496/- and bringing to tax an interest income on refund of income-tax to the tune of Rs.5483/- which stood ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 6 added by the AO in the hands of the assessee as the same were not declared by the assessee in its return of income filed with the Revenue . The penalty proceedings were initiated by the AO against the assessee u/s. 271(1)(c) r.w.s. 274 of the 1961 Act. The assessee did not participated in penalty proceedings before the AO, which led to the passing of penalty order u/s. 271(1)(c) , dated 27.04.2016 , wherein the AO levied penalty of Rs. 3,36,700/- u/s 271(1)(c) on the assessee. The assessee filed an appeal before ld. CIT(A) , but the assessee did not appear before ld. CIT(A) when the appeal was called for hearing by ld. CIT(A) (details produced in preceding para’s of this order of the notices issued by ld. CIT(A) and non compliances by the assessee), who was pleased to pass an ex-parte appellate order in liminewithout discussing issue(s) on merits , dismissing appeal filed by the assessee and confirming the penalty imposed by the AO u/s 271(1)(c) of the 1961 Act, which was in infringement of Section 250(6) of the 1961 Act which requires ld. CIT(A) to dispose of the appeal in writing which shall state the points for determination , the decision thereon and the reasons for the decision, which makes the appellate order passed by ld. CIT(A) as unsustainable in the eyes of law. We have observed that ld. CIT(A) has dismissed the appeal of the assessee without discussing on merits of the penalty of Rs. 3,36,700 /- as leviedby AO u/s 271(1)(c) by confirming the aforesaid penalty as levied by the AO, and the appeal of the assessee stood dismissed in limine ex-parte by ld.CIT(A) without passing a reasoned and speaking order on merits of the issue involved in the appeal.We have also observed that as many as six notices were issued by ld. CIT(A) fixing date of hearing , but the assessee either sought adjournment or did not attended the proceedings before ld. CIT(A). We have observed that ld. CIT(A) dismissed the appeal of the assessee ex-parte in limine without discussing the issues on merits ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 7 which were raised by the assessee in its appeal filed before ld. CIT(A). The reference is drawn to provision of Section 250(6) of the Act ,whereby it is incumbent upon ld. CIT(A) to decide the appeal on merits , after recording his reason for the decision arrived on the issues raised by the assessee in its appeal , but the appellate order in the instant case was passed by ld. CIT(A) ex-parte in limine without discussing the issues on merits, which makes the appellate order passed by ld. CIT(A) unsustainable in the eyes of law . The assessee is equally responsible for its woes as the assessee has to be vigilant after filing its appeal. Despite being granted as many as six opportunities of hearing by ld. CIT(A) during the course of appellate proceedings , the assessee did not either attend hearing or merely sought adjournments. Thus, the assessee is equally responsible for its woes. Thus keeping in view the entire facts and circumstances of the case as discussed above and in fairness to both the parties with a view to grant justice, we are inclined to set aside the appellate order dated 10.09.2018 passed by ld. CIT(A) and restore the matter back to the file of ld. CIT(A) for fresh adjudication of the assessee’s appeal filed before ld. CIT(A), on merits in accordance with law. Needless to say that ld. CIT(A) will give proper and adequate opportunity of hearing to the assessee in set aside remand proceeding in accordance with the principle of natural justice and in accordance with law.The ld. CIT(A) is directed to pass reasoned and speaking order, while denovo adjudicating the appeal of the assessee. The evidences /explanations submitted by the assessee shall be admitted by ld. CIT(A) in accordance with law and be adjudicated on merits in accordance with law. Needless to say that ld. CIT(A) has powers co-terminus with the powers of the AO. The appeal of the assessee is allowed for statistical purposes. We order accordingly. ITA No.60/Vns/2019 Assessment Year: 2013-14 Shailesh Mani Tripathi v. ACIT 8 8. In the result, appeal of the assessee in ITA No.60/Vns/2019 for ay: 2013- 14is allowed for statistical purposes. Order pronounced in Open Courton 24/05/2022at Varanasi, U.P, after the conclusion of hearing , and reduced to writing and signed on /05/2022 . Sd/- Sd/ [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/05/2022 Aks/- Copy forwarded to: 1. Appellant –Shailesh Mani Tripathi, 384-E Infront of Var- Vadhu Marriage House AarogyaMandir, ShahpurRapti Nagar, Gorakhpur 2. Respondent –ACIT, AaykarBhawan, Civil Lines, Gorakhpur 3. Sr. DR , ITAT, Varanasi, U.P. 4. CIT, Varanasi 5. The CIT(A), Gorakhpur 6. The Guard File Sr. P.S.