Late Shiv Pratap Singh (Through L/H Smt. Suman Singh), Barabanki V. Income Tax Officer, Barabanki

ITA 664/LKW/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0567 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SHAILENDRA MISHRA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 664/LKW/2015 ASSESSMENT YEAR: 2009 - 10 LATE SHIV PRATAP SINGH THROUGH L/H SMT. SUMAN SINGH BRAMHNAN WARD, HAIDERGARH BARABANKI V. INCOME TAX OFFICER BARABANKI PAN: ABWWPS8145G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY: SHRI MANOJ KUMAR GUPTA , D.R. DATE OF HEARING: 04 12 2017 DATE OF PRONOUNCEMENT: 08 12 2017 O R D E R THIS APP EAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - 1. THAT THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT THE ASSESSEE COULD NOT PROVIDE REQUISITE EVIDENCES BEFOR E THE AO AS WELL AS IN APPEAL BEFORE THE ID. CIT(A) DUE TO SERIOUSLY ILLNESS OF ASSESSEE AND HIS BROTHER ( WHIC H CULMINATED IN THEIR DEATH ON 2 8 - 11 - 2 013 & 30 - 03 - 2 013 RESPECTIVELY ) AND IN CONFIRMING THE ARBITRARY ASSE SSMENT OF TOTAL INCOME AT RS. 26,86,280 / . 2. THAT THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN ARBITRARY SUSTAINING THE ESTIMATE OF NET PROFIT AT RS.5,26,418 / - WHICH WAS WORKED BY THE AO BY APPLYING NET PROFIT RATE OF 8% ON GROSS RECEIPT OF RS.65,80,221 / - ( AS PER ITS DATA). 3. THAT T HE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN SUSTAININ G THE ARBITRARY ADDITION OF RS. 21,59,500 / - IN RESPECT OF DEPOSITS IN ICICI BANK ACCOUNT, WHICH WAS PART OF GROSS RECEIPTS SHOWN AT RS.92,50,000 / - AS PER AUDIT REPORT. : - 2 - : 4. T HAT THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN ARBITRARILY REJECTING THE WRITTEN SUBMISSION AND ENHANCING THE T OTAL INCOME OF APPELLANT BY RS. 26,69,779/ - ON FLIMSY GROUNDS . 2 . DURING THE COURSE OF HEARING, THE LD. A.R. OF THE ASSESSEE HAS INVITED MY ATTENTION THAT THE ASSESSING OFFICER HAS PASSED EX - PARTE ORDER UNDER SECTION 144 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT 'THE ACT') AGAINST THE ASSESSEE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO HIM. THOUGH THE ASSESSEE HAS FILED APPEAL B EFORE THE LD. CIT(A) , BUT DURING THE PENDENCY OF THE APPEAL, THE ASSESSEE, SHRI SHIV PRATAP SINGH WAS PASSED AWAY AND THESE FACTS WERE ALSO BROUGHT TO THE NOTICE OF THE LD. CIT(A), BUT THE LD. CIT(A) HAS PASSED AN ORDER IN THE NAME OF THE DECEASED PERSON W ITHOUT AFFORDING OPPORTUNITY TO HIS SUCCESSOR. THEREFORE, THE ORDER OF THE LD. CIT(A) IS NOT MAINTAINABLE IN THE EYES OF LAW. THESE FACTS WERE CONFRONTED TO THE LD. D.R. AND THE LD. D.R. HAS CANDIDLY ADMITTED THAT DURING THE PENDENCY OF APPEAL BEFORE THE LD. CIT(A), ASSESSEE PASSED AWAY. THE DEATH CERTIFICATE OF THE ASSESSEE IS PLACED ON RECORD, ACCORDING TO WHICH ASSESSEE PASSED AWAY ON 28/11/2013, AND THE LD. CIT(A) PASSED AN ORDER ON 28/2/2014. IN THE LIGHT OF THESE FACTS, THE LD. D.R. HAS AGREED THA T LET THE MATTER BE SENT BACK TO THE FILE OF THE LD. CIT(A) TO PASS FRESH ORDER. BUT THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT SINCE THE ASSESSING OFFICER HAS PASSED AN EX - PARTE ORDER WITHOUT AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR FRESH ASSESSMENT DE - NOVO. 3 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE RIVAL SUBMISSIONS, I FIND FORCE IN THE CONTENTIONS OF THE ASSESSEE THAT THE LD. CIT(A) HAS PASSED AN ORDER AGAINST THE DECEASED PERSON. THEREFORE, HIS ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW. IT IS ALSO ON RECORD THAT DURING THE ASSESSMENT PROCEEDINGS ASSESSEE WAS NOT WELL, : - 3 - : THEREFORE, HE COULD NOT PROSECUTE HIS CASE EFFECTIVELY AND THE ASS ESSING OFFICER HAS PASSED AN ORDER UNDER SECTION 144 OF THE ACT. UNDER THESE FACTS AND CIRCUMSTANCES, I AM OF THE VIEW LET THE ENTIRE ISSUE BE EXAMINED AGAIN BY THE ASSESSING OFFICER AFTER MAKING A DETAILED ENQUIRY. ACCORDINGLY, I SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE ASSESSING OFFICER TO FRAME THE ASSESSMENT DE - NOVO. 4 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION ED PAGE . SD/ - [ S UNIL KUMAR Y ADAV ] JUDICIAL MEMBER DATED: 8 TH DECEMBER, 201 7 JJ: 0412 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR