Ram Surat Yadav., Sant Kabir Nagar. V. The ITO, Basti New, Basti.

ITA 67/LKW/2023

AI Insights

The appeals by Ram Surat Yadav, proprietor of Yadav Medical Stores, contest the orders from the National Faceless Appeal Centre (NFAC), which were passed ex-parte. The primary grievances include the lack of adequate opportunity to be heard and the legality of the re-opening of the assessment under section 148 and subsequent assessment under section 147 of the Income-tax Act. The appeals also challenge the application of section 69 over section 68 for an addition of Rs. 12,14,000, and the upholding of a penalty under section 271AAC(1). The Tribunal found merit in the assessee's request for another opportunity to present his case, leading to the restoration of the appeals to the Assessing Officer.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123033 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-05-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 21-02-2023
• Laws Referred To: Income-tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 147; 68; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘B’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.67 & 68/Lkw/2023 Assessment Year: 2017-18 Ram Surat Yadav, M/s Yadav Medical Stores, Lakari P.O., Mishrauliya Khalilabad, Sant Kabir Nagar- 272175 (U.P.) PAN: ABAPY 4300N Vs. The Income Tax Officer, Basti- New Jurisdictional Officer. (Appellant) (Respondent) O R D E R PER SUDHANSHU SRIVASTAVA, J.M.: Both the appeals have been preferred by the assessee against the impugned orders passed by the National Faceless Appeal Centre (NFAC), Delhi as per the following details: S.No. ITA Nos. Date of order of NFAC Assessment Year 1. 67/Lkw/2023 27/12/2022 2017-18 2. 68/Lkw/2023 27/12/2022 2017-18 2. The grounds raised in both the appeals are as under: ITA No.67/Lkw2023 (A.Y. 2017-18) “1. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order, which is unlawful, unjustified and against the principles of natural justice. 2. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order without giving adequate opportunity of being heard. Appellant by Ms. Shweta Mittal, CA Respondent by Shri Harish Gidwani (DR) Date of hearing 24/05/2023 Date of pronouncement 31/05/2023 I.T.A. No.67 & 68/Lkw/2023 2 3. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in upholding the decision of Ld. Assessing Officer for re-opening the assessment u/s 148 of the Income-tax Act and making the assessment u/s 147 of Income-tax Act dated 29.09.2021 by disregarding the returned income. 4. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in applying the provisions of section 69 of Income- tax Act against the provision of section 68 of Income-tax Act applied by the Ld. Assessing Officer while making the addition of Rs. 12,14,000/-. 5. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in upholding the addition of Rs. 12,14,000/- made by Ld. Assessing Officer by applying the provisions of section 68 of Income-tax Act, 1961. 6. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing assessment order which is contrary to the facts and law. 7. The appellant craves leave to add, amend, alter or withdraw any ground of appeal or raise any new ground of appeal during the pendency of appeal.” ITA No.68/Lkw2023 (A.Y. 2017-18) “1. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order, which is unlawful, unjustified and against the principles of natural justice. 2. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order without giving adequate opportunity of being heard. 3. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on the facts in upholding the order of penalty u/s 271AAC (1) of Income-tax Act. 4. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order which is contrary to the facts and law.” 5. The appellant craves leave to add, amend, alter or withdraw any ground of appeal or raise any new ground of appeal during the pendency of appeal.” I.T.A. No.67 & 68/Lkw/2023 3 3. At the outset, the ld. Authorized Representative submitted that the NFAC had passed the impugned orders exparte qua the assessee. It was also submitted that even the Assessing Officer had passed ex-parte orders. It was prayed that the assessee should be granted one more opportunity to present his case. 4. Per contra, the ld. Sr. Departmental Representative opposed the prayer of the ld. AR and submitted that the assessee was willfully non- compliant inasmuch as he had neither availed of the opportunity before the Assessing Officer and nor before the NFAC and, therefore, no further opportunities should be granted to the assessee. 5. Having heard both the parties and after having gone through the records, we are of the considered view that on the facts and circumstances of the case, it will be appropriate to grant one more opportunity to the assessee. Accordingly, we restore both the appeals to the office of the Assessing Officer with the direction to adjudicate the issues at hand on merits and in accordance with law, after giving proper opportunity to the assessee to present its case. We further direct the assessee to fully cooperate during the proceedings before the Assessing Officer this time, failing which, the Assessing Officer shall be at liberty to decide the issues at hand ex-parte qua the assessee on merits and in accordance with law. . 6. In the final result, both the appeals of the assessee stands allowed for statistical purposes. (Order pronounced in the open court on 31/05/2023) Sd/- Sd/- ( ANADEE NATH MISSHRA ) (SUDHANSHU SRIVASTAVA) Accountant Member Judicial Member Dated: 31/05/2023 Aks I.T.A. No.67 & 68/Lkw/2023 4 Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Asstt. Registrar