Haseeb Ahmad Khan , Balrampur V. Income Tax Officer, GONDA

ITA 67/LKW/2013

• Counselvise Citation: 6723714 RSA 2013
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-05-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 11-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Notional interest
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.67/LKW/2013 ASSESSMENT YEAR:2007-08 HASEEB AHMAD KHAN JARWAL ROAD BALRAM P UR V. INCOME TAX OFFICER GONDA PAN:ALZPK3173A ( A PP ELLANT ) ( RES P ONDENT ) APPELLANT BY: SHRI. J. J. MEHROTRA, C.A. RES P ONDENT B Y : SMT. RANU BISWAS, D.R. DATE OF HEARING: 30.05.2013 DATE OF PRONOU NCEMENT: 07.08.2013 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOU S GROUNDS WHICH ARE AS UNDER:- 1. THAT THE LD. COMMISSI ONER OF INCOME TAX (A PPEALS) HAS FAILED TO APPRECIATE THAT THE RE-OPENI NG OF ASSESSMENT WAS BAD IN LAW AND BEYOND JURISDICTION. 2. THAT THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE REASONS FOR INITIATION OF PROCEEDINGS U/S 147 WERE NEVER PROVIDED TO THE A PPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THUS THE ENTIRE PROCEEDINGS ARE BAD IN LAW AND LIABLE TO BE QUASHED. :-2-: 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT GIVEN ANY CLEAR FINDING IN RESPECT OF CONFIRMING THE ADDITION OF RS. 3,18,030/- ON ACCOUNT OF EXCESS CLAIM OF COST OF MATERIAL. 4. THAT THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE EVIDENCES FURNISHE D INSPITE OF THE FACT THAT ALL THE EVIDENCES WERE GERMANE TO THE ISSUES UNDER ASSESSMENT. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT RS .3,18,030/- REPRESENTS THE COST OF MATERIAL SUPPLIED BY P.W.D. BALRAMPUR AND HAS FAILED TO TAKE COGNIZANCE OF THE CONFIRMATION THEREOF. 6. THAT THE LD. COMMISSIONER OF IN COME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDI TION OF RS.5010/- ON ACCOUNT OF NOTIONAL INTEREST FROM NSCS EVEN THO UGH THE SAME WAS LIEN WITH THE CONTRACTEE DEPARTMENT AS SECURITY DEPOSIT. 7. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE ASSESS MENT HAS BEEN FRAMED WITHOUT AFFORDING PROPER OPPORT UNITY BEING HEARD TO THE APPELLANT WHICH IS AGAINST THE JUDICIAL PRINCIPLES OF AUDI-ALTERM-PARTEM AND THEREFORE, THE SAME IS VOID-AB-INITIO AND BAD IN LAW. 8. THAT THE LD. COMMISSIONER OF IN COME TAX (APPEALS) HAS FAILED TO APPRECIATE THE AFFIDAVIT OF AUTHORIZED COUNSEL OF THE APPELLANT AND TREATING THE APPE LLANT IN DEFAULT. 9. THAT THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS) IS WITHOUT APPRECIATING MA TERIAL AVAILABLE ON RECORD AND IS TOTALLY ON THE BASIS OF PRESUM PTION, CONJECTURE AND SURMISES. 10. THAT ORDER PASSED BY LD. LOWE R COURT IS AGAINST THE MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. :-3-: 2. DURING THE COURSE OF HEARING, TH E LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LOWER AUTHORITIES WITH THE SUBMISSION THAT THE ASSESSING OFFI CER HAS FRAMED EX-PARTE ASSESSMENT UNDER SECTION 147/144 OF THE INCOME-TA X ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). IT WAS FURTHER SU BMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS PROPER NOTICES WERE NOT SERVED UPON THE ASSESSEE. BEFORE THE LD. CIT(A) THE ASSESSEE HAS PL ACED RELEVANT EVIDENCE RELATING TO THE IMPUGNED ISSUES WITH A REQUEST TO ADJUDICATE TH E ISSUES IN THE LIGHT OF DOCUMENTS PLACED ON RECO RD, BUT THE LD. CIT(A) HAS DECLINED TO ADMIT THE ADDITIONAL EVIDENCE ON THE GROUND THAT NO SUFFIC IENT GROUNDS HAVE BEEN SHOWN BY THE ASSESSEE TO ENTERTAIN AN Y ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME-TAX RULES. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT SINCE THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUE IN THE LIGHT OF THE MATERIAL EVID ENCE AND HAS CONFIRMED TH E ADDITIONS MADE BY THE ASSESSING OFFICER, IN THE IN TEREST OF JUSTICE THE MATT ER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER WITH A DIRECTION TO RE-EXAMINE THE ISSUES IN THE LIGHT OF EVIDENCE FILED BEFORE THE LD. CIT(A) AND ALSO BEFORE THE TRIBUNAL. 3. THE LD. D.R., ON THE OTHER HAND , HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) WI TH THE SUBMISSION THAT THE ASSESSING OFFICER HAS AFFORDED PROPER OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE, BUT THE ASSESSEE DID NOT AVAIL THE SAME AND HA S OPTED NOT TO APPEAR BEFORE THE ASSESSING OFFICER. THE AS SESSING OFFICER WAS, THEREF ORE, FORCED TO PASS EX- PARTE ORDER AGAINST THE ASSESSEE ON NON- COMPLIANCE OF THE DIRECTIONS ISSUED BY THE ASSESSING OFFICER. 4. HAVING HEARD THE RIVAL SUBMISSION S AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT UNDISPUTEDLY TH E ASSESSMENT ORDER WAS PASSED EX- PARTE UNDER SECTION 147/144 OF THE ACT. FROM A CAREFUL READING OF THE ASSESSMENT ORDER, WE DO NOT FIND AN Y SPECIFIC FINDING OF THE ASSESSING :-4-: OFFICER WITH REGARD TO THE SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE THOUGH HE HAS RECORDED SERVICE OF NO TICE ISSUED UNDER SECTION 148 OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESS EE HAS PLACED RELEVANT EVIDENCE WITH REGARD TO THE ISSUES INVO LVED, BUT THE LD. CIT(A) HA S DECLINED TO ADMIT THE SAME ON THE GROUND THAT NO SUFFICIE NT GROUNDS HAVE BEEN SHOWN BY THE ASSESSEE TO ENTERTAIN ANY ADDITIONAL EVIDENCE UNDER 46A OF THE INCOME-TAX RULES. WHEN THE ASSESSMENT HAS BEEN FRAMED EX-PARTE BY THE ASSESSING OFFICER, IT HAS BECOME ALL THE MORE NECE SSARY FOR THE LD. CIT(A) TO LOOK INTO THE EVIDENCE FILED BEFORE HIM AND ALSO THE REASONS ON ACCOUNT OF WHICH THE ASSESSEE COULD NOT APPEAR AND FILE THE RELEVANT EVIDENCE BEFORE THE ASSESSING OFFICER. INST EAD OF EXAMINING THIS AS PECT, THE LD. CIT(A) HAS CONFIRMED THE ADDITIONS WITH OUT DEALING WITH THE ISSUES ON MERIT IN THE LIGHT OF EVIDENCE FILED BEFORE HIM. WE ARE, THEREFORE, OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE IMPUGNED IS SUES IN THE LIGHT OF EVIDENCE FILED BEFORE THE LD. CIT(A) AND ALSO BEFORE THE TRIBUNAL. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RE STORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN TH E OPEN COURT ON 7.8.2013. SD/- SD/- [PRAMOD KUMAR] [S UNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:7.8.2013 JJ:0507 :-5-: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR