Shri Ajeet Singh, JODHPUR V. ITO, NAGAUR

ITA 67/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9628 (ITAT-JODHPUR)
• Duration Of Justice: 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA J
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.67/JODH/2017 ASSESSMENT YEAR 2011-12 SHRI AJEET SINGH, POST RIYAN, TEHSIL MERTA, DISTRICT-NAGAUR. PAN: CNFPS 0828A VS ITO, WARD-1, NAGAUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KOTHARI, C.A. RESPONDENT BY : SHRI S.K. MEENA, JCIT-DR. / DATE OF HEARING : 01/03/2017 / DATE OF PRONOUNCEMENT: / /2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 07.11.2016 BY CIT(A)-II, JODHPUR PERTAINING TO ASSESSMENT YEAR 2011-12 ON FOLLOWING GROUNDS OF APPEAL. 1. THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN LA W AND BAD ON FACTS, AND IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICES. TH E ORDER PASSED WITHOUT ANY OPPORTUNITY OF HEARING IS BAD IN LAW AND BAD ON FACTS. 2. THE LD. CIT(A) HAS ERRED IN NOT DECIDING THE IS SUES ON MERITS AND THE ORDER IS BAD IN LAW AND BAD ON FACTS 3. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDI TION OF DEPOSIT IN BANK ACCOUNT AMOUNTING TO RS.17,13,085/- WHICH IS BAD IN LAW AN D BAD ON FACTS.. 2. AT THE TIME OF HEARING LEARNED AR INVITING ATTEN TION TO THE IMPUGNED ORDER SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY RELYING UPON MULTIPLAN IN VIEW OF THAT THE ASSESSEE REMAINE D UNREPRESENTED ON THE DATES OF HEARING FIXED BY HIM. IT WAS HIS SUBMISSION THAT THE STATUTE DOES NOT PERMIT THE COMMISSIONER TO DISMISS THE APPEAL IN LIMINE AND HE IS REQUIRED TO DECIDE THE ISSUES. ITA NO.67-JODH-2017 A.Y. 2011-12 2 3. LEARNED AR WAS REQUIRED TO ADDRESS THE OBSERVATI ONS OF THE LEARNED COMMISSIONER WHEREIN IT IS NOTED THAT ON THE SIX DA TES FIXED FOR HEARING FROM JANUARY, 2016 TO OCTOBER, 2016 WHY THE ASSESSEE REM AINED UNREPRESENTED. LEARNED AR, IN REPLY STATED THAT THE ASSESSEE HAD N O EXPOSURE TO TAX LITIGATION AND AFTER HAVING APPOINTED A COUNSEL HE ON RECORD PROVI DED HIS OWN ADDRESS IN VILLAGE LILIYA, POST RIYA MERTA CITY, NAGAUR, RAJASTHAN AND APPOINTED A COUNSEL IN NAGAUR THUS THE NOTICES PRESUMABLY RECEIVED WERE NO T PROPERLY COMMUNICATED TO HIS COUNSEL AND DUE TO HIS IGNORANCE QUA THE PROCED URE HE REMAINED UNREPRESENTED. IN SUPPORT OF THE PRAYER FOR REMAND BACK TO THE CIT (A) IT WAS STATED THAT HE IS READY TO GIVE HIS ORAL UNDERTAKING THAT THE ASSESSE E SHALL PARTICIPATE IN THE PROCEEDINGS IN CASE A REMAND IS DIRECTED. 4. LEARNED SR.D.R. CONSIDERING THE IMPUGNED ORDER F AIRLY SUBMITTED THAT HE HAS NO OBJECTION IN THESE CIRCUMSTANCES IF THE REMA ND IS DIRECTED. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD ACCEPTING THE EXPLANATION OFFERED BY THE LEA RNED AR IN REGARD TO WHY THE ASSESSEE UNREPRESENTED BEFORE THE CIT(A) AS BONA FI DE AND THUS TAKING NOTE OF THE ORAL UNDERTAKING GIVEN BY THE LEARNED AR THAT THE A SSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS BEFORE THE CIT(A) I AM OF THE VIEW THAT THE IMPUGNED ORDER ON FACTS DESERVES TO BE SET ASIDE. THE SAID CONCLUSION IS AL SO SUPPORTED BY THE FACT THAT THE LD. CIT(A) WHILE DISMISSING THE APPEAL RELYING UPON MULTIPLAN HAS FOLLOWED A PROCEDURE CONTRARY TO THE STATUTORY REQUIREMENTS AS SET OUT IN SUB SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961. THE LAW RE QUIRES THE COMMISSIONER WHILE DECIDING THE APPEALS NOT ONLY TO ADHERE TO TH E REQUIREMENTS SET OUT IN SUB SECTIONS (2), (3), (4) AND (5) OF SECTION 250 BUT A LSO MANDATES THAT THE COMMISSIONER OF INCOME TAX(APPEALS) WHILE DISPOSING OF THE APPEAL SHALL PASS AN ORDER IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON IN THE DECISION . IT IS SEEN THAT THE SAID EXERCISE IS MISSING. ITA NO.67-JODH-2017 A.Y. 2011-12 3 ACCORDINGLY IN ORDER TO ADDRESS THE STATUTORY DEFIC IT THE IMPUGNED ORDER IS SET ASIDE AND RESTORED TO THE FILE CIT(A) WITH A DIRECTION TO PASS A SPEAK ING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PR OVIDED IS NOT ABUSED BY THE ASSESSEE AND IS UTILIZED MEANINGFULLY BY MAKING FUL L AND PROPER COMPLIANCE BEFORE THE CIT(A). IT IS MADE CLEAR THAT IN THE EVE NTUALITY, THE ASSESSEE DOES NOT PARTICIPATE IN THE PROCEEDINGS, FAIRLY THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAI LABLE ON RECORD. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- (SMT. DIVA SINGH) JUDICIAL MEMBER DATED: 06/03 /2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR