Biswal Constructions, Jajpur V. ITO, Cuttack

ITA 61/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4380 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 15-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2011
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: R K DASM M SWAIN ARS
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 061/CTK/2011 (ASSESSMENT YEAR 2007 - 08) BISWAL CONSTRUCTIONS , JAJPUR ROAD, J AJPUR PAN: AAHFB 6097 P VERSUS INCOME - TAX OFFICER, WARD 1(2), CUTTACK. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI R.K.DAS/M.M.SWAIN, ARS FOR THE RESPONDENT SHRI K.N.JANA, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE RAISES SEVERAL GROUNDS WITH RESPECT TO MERIT ADDITIONS AS WERE PUT FORTH BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IN PURSUANCE TO THE ORDER OF THE ASSESSING OFFICER U/S.143(3). 2. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITT ED THAT THE GROUNDS ARE BASICALLY INTERRELATED TO BE EXPLAINED IN ITS ENTIRETY LINKING THE ESTIMATION OF PROFIT ON THE GROSS RECEIPTS, THE ASSESSEE BEING A CIVIL CONTRACTOR AND THEREAFTER MAKING SEPARATE ADDITIONS IN THE PARTNERS CAPITAL ACCOUNT AND INVEST MENT IN THE WORK - IN - PROGRESS U/S.69A. HE POINTED OUT THAT THE LEARNED CIT(A) OPTED TO DISMISS THE ASSESSEES APPEAL BY NOT ADMITTING THE SAME AS HAVING BEEN BELATEDLY FILED BEFORE HIM. THE ASSESSEES PETITION FOR CONDONATION OF DELAY WAS CONSIDERED WITHOUT MERITS WHEN THE MERIT ADDITIONS WERE NOT AT ALL CONSIDERED. HE PRAYED THAT THE LEARNED CIT(A) MAY BE DIRECTED TO CONSIDER THE ASSESSEES CONTENTIONS ON MERITS INSOFAR AS THE ASSESSING OFFICER HAD PROCEEDED UNILATERALLY BY ACCEPTING THE INCOME FROM CONTRAC TS RENDERED TO TAX BY THE ASSESSEE BUT ALSO MAKING SEPARATE ADDITIONS U/S.69A AND DISALLOWING THE SALARY AND INTRODUCTION OF CAPITAL BY THE PARTNERS WHICH CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE WAS TO BE CONSIDERED IN JUST AND FAIR MANNER AS PROVIDED UNDER THE ACT. 3. THE LEARNED DR HAD NO OBJECTION IF THE ISSUES ARE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR CONSIDERATION ON MERITS AS PRAYED FOR BY THE LEARNED COUNSEL FOR THE ASSESSEE. ITA NO.06 1/CTK/2011 2 4. AFTER HEARING THE RIVAL CONTENTIONS, WE ARE INCLINED TO A LLOW THE PRAYER OF THE LEARNED COUNSEL FOR THE ASSESSEE INSOFAR AS THE ORDER U/S.143(3) WAS PASSED ON 8.12.2009 AND IN THE APPEAL MEMO THE DATE OF SERVICE OF THE ASSESSMENT ORDER HAS BEEN SHOWN AS 28.1.2010. THE APPEAL HAS BEEN FILED ON 12.3.2010 BEFORE TH E CIT(A) WHICH DELAY WAS PETITIONED FOR CONDONATION HAS NOT BEEN LIBERALLY CONSIDERED BY THE LEARNED CIT(A) IN DISMISSING THE ASSESSES APPEAL WITHOUT DISCUSSING THE MERIT ADDITIONS IN APPEAL BEFORE HIM. WE ARE OF THE CONSIDERED VIEW THAT CERTAIN INCOMES H AVE BEEN TAXED WITHOUT ANY BASIS WHICH OUGHT TO HAVE BEEN CONSIDERED BY THE LEARNED CIT(A) IN ACCORDANCE WITH THE PROVISIONS OF THE I.T.ACT. WE HEREBY CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE CIT(A) AND DIRECT THE LEARNED CIT(A) TO CONSIDER THE ISSUES RAISED BEFORE HIM ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON DT. 17 TH JUNE, 2011 S D/ - S D/ - (K.S.S.PRASA D RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 17 TH JUNE, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: BISWAL CONSTRUCTIONS , JAJPUR ROAD, JAJPUR 2. TH E RESPONDENT: INCOME - TAX OFFICER, WARD 1(2), CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.