Smt. Tara Mishra, Lucknow V. DCIT Rg, I, Lucknow

ITA 643/LKW/2011

• Counselvise Citation: 64323714 RSA 2011
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-06-2014
• Assessment Year: misc
• Appeal Filed On: 21-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: R N SHUKLA
• Keywords: Capital asset; Opportunity of being heard; Reasonable cause
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 643 /LKW/201 1 ASSESSMENT YEAR: 200 7 - 0 8 SMT. TARA MISHRA 5/8, VISHAL KHAND GOMTI NAGAR , LUCKNOW V. INCOME TAX OFFICER RANGE I LUCKNOW PAN: ANOPM1523F (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. R. N. SHUKLA , ADVOCATE RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 20 0 6 2014 DATE OF PRONOUNCEMENT: 25 0 6 2014 O R D E R PE R SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1 . BECAUSE THE APPELLANT COULD NOT REPRESENT THE APPELLATE PROCEEDINGS BEFORE THE COMMI SSIONER OF INCOME TAX (APPEALS) - I , LUCKNOW DUE TO PROLONG ILLNESS LEADING TO LOSS OF EYESIGHT. 2 . BECAUSE THERE WAS SUFFICIENT REASONABLE CAUSE BY WHICH THE APPELLANT WAS PREVENTED TO REPRESENT THE APPELLATE PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) - L, LUCKNOW. 3 . BECAUSE UND ER THE FACT AND CIRCUMSTANCES OF THE CASE THE COURT BELOW ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER . 4 . BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE CONFIRMATION PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : OF ADDITION OF RS.72,32,079/ - AS INCOME FROM BUSINESS RELYING SOLELY ON THE ASSESSMENT ORDER IS ARBITRARY, ILLEGAL AND BAD IN LAW. 5 . BECAUSE THE ASSESSING OFFICER FAIL TO CONSIDER THE TWO PORTFOLIOS I.E. AN INVESTMENT PORTFOLIO COMPRISING OF SECURITIES WHICH ARE TO BE TREATED AS CAPITAL ASSETS AND A TRADING PORTFOLIO COMPRISING OF STOCK IN TRADE WHICH ARE TO BE TREATED AS TRADING ASSETS AND MERGED THE FACTS OF ONE PORTFOLIO WITH ANOTHER. 6 . BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE THE COURT BELOW ERRED IN ESTIMATING THE ANNUAL RENTAL VALUE , THE INCOME FROM HOUSE PROPERTY AT RS.5,84,683/ - . 7 . BECAUSE UNDER THE FACT AND CIRCUMSTANCES OF THE CASE THE COURT BELOW IS NOT JUSTIFIED IN MAKING ADDITION OF RS. 17,00,000/ - UNDER SECTION 68 OF THE INCOME TAX ACT 1961 . 8 . BECAUSE WITHOUT PREJUDICE TO ABOVE E VEN IF THE ASSESSMENT ORDERS ARE TO BE UPHELD AND THE ASSESSEE IS TO BE TREATED AS A DEALER IN SHARES, HE MUST BE GIVEN THE OPTION OF VALUING THE CLOSING STOCK OF SHARES ON ANY OF THE RECOGNIZED METHODS. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR T HE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS ADJUDICATED THE APPEAL OF THE ASSESSEE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE HAS ALSO INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A), WITH THE SUBMISSION THAT THOUGH HE HAS RECORDED FEW DATES OF HEARING, BUT NO SPECIFIC FINDING WAS GIVEN WITH REGARD TO THE SERVICE OF LAST NOTICE OF HEARING . THE LD. CIT(A) HAS ALSO DECIDED THE APPEAL SUMMARILY WITHOUT ADJUDICATING THE ISSUES RAISED BEFORE HIM ON MERIT. 3 . THE LD. D.R., O N THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS , WE FIND THAT THOUGH THE LD. CIT(A) HAS RECORDED PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : FEW DATES OF HEARING IN HIS ORDER, BUT NO S PECIFIC FINDING W AS GIVEN WHETHER NOTICE OF HEARING WAS DULY SERVED UPON THE ASSESSEE WHEN THE MATTER WAS HEARD EX - PARTE AGAINST HER . IN THE ABSENCE OF SPECIFIC FINDING, IT IS NOT POSSIBLE FOR US TO DRAW AN INFERENCE THAT THE ASSESSEE WAS DULY SERVED WITH THE NOTICE OF HEARING BEFORE ADJUDICATING THE APPEAL. MOREOVER, THE LD. CIT(A) HAS DISPOSED OF THE APPEAL SUMMARILY WITHOUT ADJUDICATING THE ISSUES ON MERIT. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT HIM TO RE - ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF THE ORDER OF THE TRIBUNAL. WE ALSO DIRECT THE ASSESSEE TO EXTEND ALL SORT OF CO - OPERATION AND MAKE HIS APPEARANCE BEFORE THE LD. CIT(A) AS AND WHEN CALLED FOR. ACCORDINGLY, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH JUNE , 2014 JJ: 2006 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )