Dilbagh Fashion, Phagwara V. The Income-tax Officer, Phagwara

ITA 635/ASR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5759 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-02-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.635 (ASR)/2016 AS SESSMENT YEAR: 2007-08 [PAN: AAGFD 0618M] DILBAGH FASHION, 132-C, MODEL TOWN, PHAGWARA. VS. INCOME TAX OFFICER, WARD-1, PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SH. RAHUL DHAWAN (D.R.) DATE OF HEARING: 06.02.2018 DATE OF PRONOUNCEMENT: 09.02.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, JALANDHAR ( 'CIT(A)', FOR SHORT) DATED 27.09.2016, CONFIRMING THE LEVY OF PENALTY U/S. 271 (1)(C) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) FOR ASSESSMENT YEAR (A Y) 2007-08. 2. THE LD. CIT(A) HAS PER AN EX PARTE ORDER CONFIRMED THE LEVY OF PENALTY IN THE ABSENCE OF ANY IMPROVEMENT IN ITS CASE BY THE ASSE SSEE-FIRM IN THE BUSINESS OF TRADING IN CLOTH, ETC., BEFORE HIM (REFER PARA 4 OF THE IMPUGNED ORDER). IN FACT, THE ASSESSEE DID NOT ATTEND ANY PROCEEDINGS BEFORE HIM AND WITHOUT ANY REASON/S BEING EXPLAINED, LEADING TO AN INFERENCE THAT IT WAS NOT INTERESTED IN PROSECUTING ITS ITA NO.635/(ASR)/2016(AY 2007-08) DILBAGH FASHION V. ITO 2 APPEAL BEFORE HIM. BE THAT AS IT MAY, IN OUR CONSID ERED VIEW, THE LD. CIT(A) WAS, IN TERMS OF SECTION 250(6) OF THE ACT, REQUIRED TO DIS POSE OF THE ASSESSEES APPEAL ON MERITS, I.E., AFTER CONSIDERING THE ASSESSEES EXPL ANATION AND THE MATERIAL AVAILABLE ON RECORD, PER A SPEAKING ORDER. HIS ORDER, THOUGH STATES OF IT HAVING BEEN PASSED ON THE BASIS OF THE MATERIAL ON RECORD, IS SANS ANY REFERENCE TO THE FACTS OF THE CASE; THE MATERIAL ON RECORD, OR EVEN THE ASSESSEES EXPL ANATION IN THE PENALTY PROCEEDINGS. WHY, THERE IS NO DISPOSAL OF THE SEVER AL GROUNDS RAISED BEFORE HIM, WHICH INCLUDE REFERENCE TO THE DECISIONS BY THE HON 'BLE JURISDICTIONAL HIGH COURT, BINDING IN THEIR RATIO ON HIM, AS THEY ARE ON US. H IS ORDER DOES NOT REFLECT THE CONSIDERATION THEREOF, AS WELL AS THE REASON/S FOR THEIR INAPPLICABILITY, I.E., ASSUMING SO. BESIDES, SOME OF THE GROUNDS ARE FACTUAL, WHICH WOULD REQUIRE OF HIM TO DWELL ON THE FACTS OF THE CASE, ISSUING DEFINITE FINDINGS OF FACT. LITTLE WONDER THAT THE ASSESSEE HAS RAISED THE SAME SET OF GROUNDS, BEING UNADDRESSED, BEFORE US. IN FACT, AS APPARENT FROM THE CAUSE TITLE OF THE ORDER, EVEN THE DEPARTMENT IS NOT REPRESENTED BEFORE HIM. THE LD. DEPARTMENTAL REPRES ENTATIVE (DR) WAS SPECIFICALLY QUESTIONED BY THE BENCH IN THE MATTER, I.E., AS TO HOW THE IMPUGNED ORDER COULD BE REGARDED AS A SPEAKING ORDER, AND WHICH HE FAILED T O ANSWER, MUCH LESS SATISFACTORILY. THE SAME IS THUS NOT SUSTAINABLE IN LAW. 3. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT PRO PER TO SET ASIDE THE IMPUGNED ORDER, AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF THE ASSESSEES APPEAL AS CONTEMPLAT ED U/S. 250(6), I.E., ON MERITS, ISSUING DEFINITE FINDINGS OF FACT IN ACCORDANCE WIT H LAW. THOUGH HE IS ENTITLED TO DRAW AN ADVERSE INFERENCE/S, I.E., IN CONSONANCE WI TH THE FACTS AND CIRCUMSTANCES OF THE CASE, WHERE THE ASSESSEE DOES NOT AVAIL THE OPP ORTUNITY OF HEARING BEFORE HIM, MEETING THE ADVERSE FINDINGS AGAINST IT, SO THAT TH E BURDEN TO SUBSTANTIATE ITS CASE ITA NO.635/(ASR)/2016(AY 2007-08) DILBAGH FASHION V. ITO 3 WHICH IS ON THE ASSESSEE, IS NOT MET, THE SAME SHOU LD FIND CLEAR MENTION IN HIS ORDER. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 09, 2018 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 09.02.2018. /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: DILBAGH FASHION, 132, MODEL TOWN, PHAGWARA. (2) THE RESPONDENT: ITO, WARD-1, PHAGWARA. (3) THE CIT(A)-2, JALANDHAR. (4) THE CIT, CONCERNED. (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER