M/S OM PRAKASH ASHOK KUMAR, KOTA V. INCOME TAX OFFICER, WARD-1-2, KOTA

ITA 620/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4038 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A 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. 620/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 M/S OM PRAKASH ASHOK KUMAR, 58-B, BHAMASHAH MANDI, KOTA. CUKE VS. THE ITO, WARD-1(2), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABFO 0777 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPOND ENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SAURAV HARSH, (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (J.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/02/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/02/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 20.02.2018 OF LD. CIT (A), KOTA FOR THE ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS UNDER: - 1. THAT ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER PASSED BY THE LEARNED LOWER AUTHORITIES I S AGAINST THE LAW AND FACTS OF THE CASE AND DESERVES TO BE QUASHE D. 2. THAT THE LEARNED C.I.T. (APPEALS) ERRED IN PASSI NG EX-PARTE ORDER WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE APPELLANT WHICH IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. ITA NO. 620/JP/2018 M/S OM PRAKASH ASHOK KUMAR V ITO 2 3. THAT THE LD. ASSESSING OFFICER HAS ERRED IN DISA LLOWING INTEREST U/S 40A(22)(B) IN THE AMOUNT OF RS. 2,27,769/- BY B RUSHING ASIDE THE EXPLANATION OF THE APPELLANT AND THE LEARNED CI T(APPEALS), KOTA ALSO ERRED IN CONFIRMING THE SAME WITHOUT THER E BEING ANY BASIS. 4. THAT THE LD. ASSESSING OFFICER HAS ALSO ERRED IN DISALLOWING EXPENDITURE U/S 40A(2)(B) MADE ON PURCHASE OF CHAN A IN THE AMOUNT OF RS. 1,40,915/- BY BRUSHING ASIDE THE EXPL ANATION OF THE APPELLANT AND THE LEARNED CIT(APPEALS), KOTA AL SO ERRED IN CONFIRMING THE SAME WITHOUT THERE BEING ANY COGENT REASON. 5. THAT THE LD. ASSESSING OFFICER HAS FURTHER ERRED IN RE-COMPUTING THE REMUNERATION TO PARTNERS AND ERRED IN MAKING DI SALLOWANCE IN THE AMOUNT OF RS. 1,32,806/- BY BRUSHING ASIDE THE EXPLANATION OF THE APPELLANT AND THE LEARNED CIT(APPEALS), KOTA ALSO ERRED IN CONFIRMING THE SAME WITHOUT THERE BEING ANY JUSTIFI CATION. 6. THAT THE LD. ASSESSING OFFICER ALSO ERRED IN WIT HDRAWING INTEREST 144A AND CHARGING INTEREST U/S 234D THE LEARNED CIT (APPEALS), KOTA ALSO ERRED IN CONFIRMING THE SAME. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR AMEND ANY GROUND ON OR BEFORE THE DATE OF HEARING. 2. GROUND NO. 2 IS REGARDING EX-PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING AN OPPORTUNITY OF HEARING TO THE ASS ESSEE AND CONSEQUENTLY IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT GIVING AN OPPORTUNITY OF HEA RING TO THE ASSESSEE. EVEN THERE IS NO MENTION IN THE IMPUGNED ORDER WHETHER ANY NOTICE WAS ISSUED TO THE ASSESSEE PRIOR TO THE DISM ISSAL OF THE APPEAL. THUS, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE IMPUGNED ORDER ITA NO. 620/JP/2018 M/S OM PRAKASH ASHOK KUMAR V ITO 3 IS PASSED BY THE LD. CIT(A) IN VIOLATION OF PRINCIP LES OF NATURAL JUSTICE HENCE, THE MATTER MAY BE SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AFTER GIVING AN OPPORTUNIT Y OF HEARING TO THE ASSESSEE. 3. ON THE OTHER HAND, LD. DR HAS RELIED UPON THE IM PUGNED ORDER OF THE LD. CIT(A) AND SUBMITTED THAT WHEN NOBODY HAS A PPEARED FOR HEARING NOR ANY WRITTEN SUBMISSIONS WERE FILED THEN , THE LD. CIT(A) HAS DECIDED THE APPEAL FILED BY THE ASSESSEE EX-PARTE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE APPEAL WAS FIL ED BY THE ASSESSEE ON 02.05.2013 WHICH WAS DECIDED VIDE IMPUGNED ORDER DATED 20.02.2018 BY THE LD. CIT(A). THEREFORE, THE IMPUGN ED ORDER WAS PASSED ALMOST AFTER THE EXPIRY OF 5 YEARS FROM THE DATE OF FILING OF THE APPEAL. FURTHER, THE LD. CIT(A) HAS NOT EVEN ALLEGE D THAT DESPITE NOTICE NOBODY HAS APPEARED BUT THE ONLY WHISPER ABOUT THE NON APPEARING IS IN PARA 2 AS UNDER:- 2. NO ONE APPEARED FOR HEARING & NOT SUBMITTED ANY WRITTEN SUBMISSIONS. THUS, IT IS CLEAR THAT THE LD. CIT(A) HAS NOT EVEN ALLEGED THAT DUE NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE OF THE HEARING OF THE ITA NO. 620/JP/2018 M/S OM PRAKASH ASHOK KUMAR V ITO 4 APPEAL. FURTHER, IT IS NOT STATED IN THE ORDER WHEN THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING AND WHAT WAS THE STA TUS OF THE NOTICE ISSUED BY THE LD. CIT(A) FOR THAT DATE OF HEARING. THEREFORE, IT IS APPARENT THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSE SSEE IS A GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THEREFO RE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE INTERES T OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO TH E RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. OTHER GROUNDS RAISED BY TH E ASSESSEE BECOMES INFRUCTUOUS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/02/2018 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:- 06/02/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE M/S OM PRAKASH ASHOK KUMAR, KOTA. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1(2), KOTA. 3. VK;DJ VK;QDR@ CIT ITA NO. 620/JP/2018 M/S OM PRAKASH ASHOK KUMAR V ITO 5 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 620/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR