Vijay Dinkar Jadhav, V. Income-tax Officer,

ITA 653/PUN/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9228 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-12-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3); 132

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NOS.653 TO 656/PUN/2016 / ASSESSMENT YEARS : 2005-06 TO 2007-08 & 2009-10 MR. VIJAY DINKAR JADHAV AT POST SHAHADA, DIST. NANDURBAR 425 409. PAN NO.ACQPJ06660F. . / APPELLANT V/S INCOME TAX OFFICER, CENTRAL-1, NASHIK. . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPONDENT BY : SHRI AJAY MODI / ORDER PER ANIL CHATURVEDI, AM : THESE 4 APPEALS OF THE ASSESSEE ARE EMANATING OUT OF A CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -13, PUNE DT.20.01.2016 FOR THE ASSESSMENT YEARS 2005-06 T O 2007-08 AND 2009-10. 2. BEFORE US, AT THE OUTSET LD.A.R. SUBMITTED THAT THOUGH THE APPEALS FILED BY THE ASSESSEE ARE FOR DIFFERENT ASSESSMENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN ALL THE APPEALS ARE IDENTICA L EXCEPT FOR THE ASSESSMENT YEAR AND THE AMOUNTS INVOLVED AND T HEREFORE THE SUBMISSIONS MADE BY HIM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHER APPEALS ALSO AND THEREFORE , ALL THE / DATE OF HEARING : 28.06.2017 / DATE OF PRONOUNCEMENT: 30.06.2017 2 APPEALS CAN BE HEARD TOGETHER. THE AFORESAID SUBMISSION OF THE LD.A.R. HAS NOT BEEN OBJECTED TO BY LD.D.R. WE THEREFORE FOR THE SAKE OF CONVENIENCE PROCEED TO DISPOSE OF ALL THE APPEALS BY A CONSOLIDATED ORDER. HOWEVER, WE PROCEED WITH NARRATING T HE FACTS FOR ASSESSMENT YEAR 2005-06. 3. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER: 3.1 ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE ENGAGED IN BUSINESS OF FERTILIZER, SEED AND PESTICIDES. SEARCH AND SEIZU RE ACTION U/S 132 OF THE ACT WAS CONDUCTED IN SUYOJIT GROUP OF CA SES ON 17.09.2010. RESIDENTIAL PREMISES OF SHRI ANANT KESHAV RAJEGAONKAR, OFFICE PREMISES OF M/S. SUYOJIT INFRASTRUCTURE PVT. LTD., AND M/S. ANANT TECHNOCRATS PVT. LTD WAS SEARCHED U/S 132 OF THE ACT. DURING THE COURSE OF SEARCH, CERTAIN INCRIMINA TING DOCUMENTS BELONGING TO THE ASSESSEE WERE SEIZED FROM SE ARCHED PREMISES. ACCORDINGLY PROVISIONS OF SEC.153C WERE INVOK ED IN THE CASE OF ASSESSEE AND A NOTICE U/S.153C WAS ISSUED ON 23 .11.2012 AND SERVED UPON THE ASSESSEE. IN RESPONSE TO THE AFO RESAID NOTICE, ASSESSEE FILED RETURN OF INCOME ON 07.03.2013 DECLARING TOT AL INCOME AT RS.4,76,105/-. THE CASE WAS TAKEN UP FOR SCRUTINY A ND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) R.W.S 153C OF THE ACT AND THE TOTAL INCOME WAS DETERMINED AT RS.6,30,880/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A ), WHO VIDE CONSOLIDATED ORDER DT.20.01.2016 DISMISSED THE APPEALS OF T HE ASSESSEE FOR A.YS. 2005-06 TO 2007-08 AND A.Y. 2009-10. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFOR E US AND HAS RAISED THE FOLLOWING GROUND : 3 ON THE FACTS AND IN THE CIRCUMSTANCE IN THE CASE AND IN THE LAW THE LOWER AUTHORITIES HAVE ERRED IN MAKING ADHOC ADDITI ON OF RS.1,54,775/- ON ACCOUNT OF ALLEGED UNACCOUNTED REC EIPT BY DISREGARDING APPELLANTS CONTENTION 4. SUBSEQUENTLY, ASSESSEE HAS ALSO RAISED THE ADDITIONAL G ROUND AND IT READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCE IN THE CASE AND IN THE LAW, LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING AN OPPORTUNITY OF HEARING TO EXPLAIN THE APPELLANT S CASE. IT IS MOST HUMBLY PRAYED BEFORE YOUR HONOURS THAT THE MATTER M AY KINDLY BE SET ASIDE TO THE FILE OF CIT(A) FOR ADJUDICATION ON ME RIT IN THE INTERESTS OF PRINCIPLE OF NATURAL JUSTICE 5. THE CASE FILE REVEALS THAT THE PRESENT APPEAL SHOULD HA VE BEEN FILED ON OR BEFORE 25.03.2016 BUT HAS BEEN FILED ON 12.04.201 6 RESULTING INTO DELAY OF 13 DAYS. ASSESSEE HAS FILED HIS AFFIDA VIT WHEREIN INTER-ALIA IT HAS BEEN CONTENDED THAT THE REASON FOR DELAY IN FILING THE APPEAL IS ON ACCOUNT OF DELAY IN IDENTIFYING THE CO UNSEL. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD PAID THE N ECESSARY APPEAL FILING FEES BEFORE THE DUE DATE OF FILING THE APPEAL, WH ICH SHOWS THAT THE DELAY IN FILING THE APPEAL WAS NOT WITH A M ALAFIDE INTENTION. IT WAS THEREFORE SUBMITTED THAT THE DELAY IN FIL ING THE APPEAL MAY BE CONDONED. LD.D.R. DID NOT SERIOUSLY OPPOSE THE PRAYER FOR CONDONATION OF DELAY. CONSIDERING THE SUBMISSIO NS MADE BY LD.A.R. AND THE AFFIDAVIT OF ASSESSEE, WE ARE OF THE VIE W THAT ASSESSEE HAS DEMONSTRATED THE REASON FOR DELAY AND IS NOT FOUND TO BE WITH ANY MALAFIDE INTENTION AND THEREFORE THE DELAY IS CO NDONED AND THE APPEAL IS ADMITTED FOR HEARING. 6. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THERE W AS NO REPRESENTATION BEFORE LD. CIT(A) FROM THE SIDE OF THE ASSES SEE. HE FURTHER SUBMITTED THAT LD. CIT(A) HAS UPHELD THE ORDER OF AO AND HAS SUMMARILY DISMISSED THE APPEAL OF THE ASSESSEE. HE T HEREFORE SUBMITTED THAT THE ASSESSEE BE GRANTED ONE MORE OPPO RTUNITY TO 4 PLEAD THE CASE AND THE MATTER MAY BE REMITTED TO LD. C IT(A). HE HAS FURTHER GIVEN AN UNDERTAKING THAT THE ASSESSEE WILL CO-OP ERATE AND APPEAR BEFORE LD. CIT(A) AT THE TIME OF HEARING. LD.D.R. ON T HE OTHER HAND OBJECTED TO THE PRAYER OF THE ASSESSEE FOR GRAN TING SECOND INNING AND SUBMITTED THAT VARIOUS OPPORTUNITIES WERE GRAN TED BY LD. CIT(A) BUT ASSESSEE DID NOT AVAIL OF THOSE OPPORTUNITIES. HE THEREFORE SUBMITTED THAT LD. CIT(A) WAS FULLY JUSTIFIED IN UP HOLDING THE ORDER OF AO. HE THUS SUPPORTED THE ORDER OF LD.CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, WE FIND THAT LD. CIT(A) HAS PASSED AN EX-PARTE ORDER AND DISMISSED THE APPEALS OF THE ASSESS EE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. IT IS A SETTLE D LAW THAT LD. CIT(A) HAS NO JURISDICTION TO DISMISS THE APPEALS OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX-PARTE ORDER, THE LD. CIT(A) SHOULD HAVE DECIDED THE GRO UNDS OF APPEALS OF THE ASSESSEE ON MERITS THEREOF. CONSIDERING TH E AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE A ND FAIR PLAY, THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE LD. CIT(A). WE THEREFORE REMIT THE ISSUE BACK TO LD. C IT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD. CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE OTHER GROUNDS OF THE APPEALS RAISED BY THE ASSESSEE. THUS THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A.Y.2 005-06 IS ALLOWED FOR STATISTICAL PURPOSE. 5 9. AS FAR AS APPEALS FOR A.YS. 2006-07, 2007-08 AND 2009- 10 ARE CONCERNED, SINCE BOTH THE PARTIES BEFORE US HAVE SUBMITT ED THAT THE FACTS OF THE CASE FOR THE ASSESSMENT YEAR 2005-06 ARE IDENTICAL TO THE FACTS OF THE CASES FOR A.YS. 2006-07, 2007-08 AND 200 9-10. WE, THEREFORE, FOR THE REASONS STATED HEREIN WHILE DISPOSING OF THE APPEAL FOR A.Y. 2005-06 AND FOR SIMILAR REASONS, ALLOW THE APPEALS OF ASSESSEE FOR A.YS. 2006-07, 2007-08 AND 2009-10 ALSO. 10 . IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 30 TH DAY OF JUNE, 2017. SD/- S D/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER PUNE; ! DATED : 30 TH JUNE, 2017. YAMINI '#$%&'&$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-13, PUNE. 4. THE CIT(CENTRAL), NAGPUR. 5. #$% &&'(, * '(, / DR, ITAT, B PUNE; 6. %+, - / GUARD FILE. / BY ORDER, // // TRUE COPY // // . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.