Neel Kumar Jain, Tikamgarh V. I T O Ward District Tikamgarh, Tikamgarh

ITA 64/JAB/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0876 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWATI AGARWAL
• Assessee Lawyers: V K MISHRA
• Section: 147; 144

Judgement Text

NEEL KUMAR JAIN V. ITO ITA NO. 64/JAB/2019 (AY 2009-10) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENC H, JABALPUR (SMC) (THROUGH VIDEO CONFERENCING) BEFORE SH. SANJAY ARORA, HON'BLE ACCOUNTANT MEMBER ITA NO 64/JAB/2019 ASSESSMENT YEAR: 2009-10 NEEL KUMAR JAIN, TIKAMGARH (M.P.) [PAN: AEWPJ 1722Q] VS. INCOME TAX OFFICER, TIKAMGARH (M.P.) (APPELLANT) (RESPONDENT) APPELLANT BY SH. V.K. MISHRA, ADV. RESPONDENT BY MS. SWATI AGARWAL, SR. DR DATE OF HEARING 13/07/2021 DATE OF PRONOUNCEMENT 13/07/2021 ORDER PER SANJAY ARORA, AM THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER DATED 21/12/2018 BY THE COMMISSIONER OF INCOME-TAX (APPEA LS), GWALIOR (CIT(A) FOR SHORT), DISMISSING THE ASSESSEES APPEAL CONTES TING HIS ASSESSMENT UNDER SECTION 147 READ WITH SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT HEREAFTER) DATED 15/12/2017 FOR ASSESSMENT YEAR (AY ) 2009-10. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, SH. MISHRA, THAT, TRUE, THERE HAD BEEN NO REPRESENT ATION BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY, BUT THAT WAS WHOLLY UNINTENTIONAL AND OCCASIONED DUE TO THE WIFE OF THE ASSESSEE SUFFERING FROM CANC ER AT THE RELEVANT TIME, I.E., IN OCTOBER-DECEMBER, 2018, WHEN THE APPEAL WAS FIXED F OR HEARING BEFORE HIM. THE DISEASE PROVED FATAL. IT IS UNDER THESE ACCENTU ATING CIRCUMSTANCES THAT THE NEEL KUMAR JAIN V. ITO ITA NO. 64/JAB/2019 (AY 2009-10) 2 ASSESSEE WAS CONSTRAINED NOT TO APPEAR BEFORE THE S AID AUTHORITY, AND THAT THERE WAS, AS INFERRED, NO LACK OF INTEREST OR EARNESTNES S IN PURSUING/PROSECUTING HIS APPEAL BEFORE HIM BY THE ASSESSEE. HE, HOWEVER, ON BEING QUESTIONED, COULD NOT FURNISH ANY SATISFACTORY REPLY AS TO WHY THE ASSESS EE DID NOT PUT UP ANY APPEARANCE IN THE ASSESSMENT PROCEEDINGS AS WELL, R ESULTING IN THE IMPUGNED ASSESSMENT BEING U/S. 144, I.E., AN EX PARTE ASSESSMENT. AS IT APPEARS, THE LD. COUNSEL HAD NOT MADE ANY ENQUIRY WITH THE ASSESSEE IN THAT RESPECT. HE FURTHER UNDERTOOK THAT THE ASSESSEE SHALL FULLY COOPERATE I N THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, I.E., WERE THE MATTER TO BE REMANDED BACK TO HIS FILE FOR A FRESH CONSIDERATION ON MERITS. NO OBJECTION TO TH E SUGGESTED COURSE OF ACTION WAS RAISED BY THE LD. SR. DR. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE ASSESSEES ONLY GRIEVANCE, AS PROJECTED BEFORE ME, IS AS TO THE APPELLATE ORDER BEING AN EX PARTE ORDER. ACCEPTING THE STATEMENT AT BAR BY THE LD. C OUNSEL, IT WOULD BE, UNDER THE CIRCUMSTANCES LEADING TO THE IM PUGNED ORDER, IN THE INTEREST OF JUSTICE THAT THE MATTER IS REMANDED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR A DECISION ON THE MERITS OF THE CASE AFTER ALLOWING A FRESH, REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRESENT H IS CASE BEFORE HIM. THIS WOULD ALSO ENSURE A CONSIDERATION OF THE ASSESSEES CASE, WHATEVER BE IT, AT LEAST ONCE BY THE REVENUE. FURTHER, SURE, NORMALLY THIS T RIBUNAL WOULD INSIST ON SUCH CIRCUMSTANCES BEING EVIDENCED OR AVERRED BY WAY OF A SWORN AFFIDAVIT BY THE ASSESSEE. HOWEVER, THIS IS DISPENSED WITH IN THE IN STANT CASE IN VIEW OF THE GRAVE, PERSONAL CIRCUMSTANCES STATED AS BEING FACED BY THE ASSESSEE, ON WHICH A MISSTATEMENT BY ANY COUNSEL IS INCONCEIVABLE. IT IS ALSO MADE CLEAR THAT NO OPINION ON THE MERITS OF THE CASE IS BEING EXPRESSE D THEREBY, AND ON WHICH THERE WERE IN FACT NO ARGUMENTS/PLEADINGS BY OR ON THE AS SESSEES BEHALF. NEEL KUMAR JAIN V. ITO ITA NO. 64/JAB/2019 (AY 2009-10) 3 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON JULY 13, 2021 SD/ - (SANJAY ARORA) A CCOUNTANT MEMBER DATED: 13/07/2021 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: SHRI NEEL KUMAR JAIN, WARD NO. 8, KH ARGAPUR, TEH. KHARGAPUR, DISTT. TIKAMGARH 472115 (M.P.) 2. THE RESPONDENT: INCOME TAX OFFICER, TIKAMGARH (M.P .) 3. THE PR. CIT, GWALIOR 4. THE CIT(A), AAYKAR BHAVAN, CITY CENTRE, GWALIOR 5. THE SR. DR, ITAT, JABALPUR 6. GUARD FILE // TRUE COPY //