M/s. Shiv Kumar, SRIGANGANAGAR V. ITO, SRIGANGANAGAR

ITA 70/JODH/2014

• Counselvise Citation: 7023314 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Assessee Lawyers: SHAFI MOHAMM A D CHOUHAN
• Keywords: Principle of natural justice
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 70/JODH/2014 70/JODH/2014 70/JODH/2014 70/JODH/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009 - -- - 10 1010 10 M/S SHIV KUMAR, M/S SHIV KUMAR, M/S SHIV KUMAR, M/S SHIV KUMAR, VILLAGE 18 NP, VILLAGE 18 NP, VILLAGE 18 NP, VILLAGE 18 NP, POST OFFICE 22 NP POST OFFICE 22 NP POST OFFICE 22 NP POST OFFICE 22 NP, ,, , TEHSIL RAISINGHNAGAR, TEHSIL RAISINGHNAGAR, TEHSIL RAISINGHNAGAR, TEHSIL RAISINGHNAGAR, DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. PAN : AWKPK7110P. PAN : AWKPK7110P. PAN : AWKPK7110P. PAN : AWKPK7110P. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -3, 3,3, 3, SRIGANGANAGAR. SRIGANGANAGAR. SRIGANGANAGAR. SRIGANGANAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAFI MOHAMM A D CHOUHAN , ADVOCATE. RESPONDENT BY : SHRI S.L. MAURYA, D.R. DATE OF HEARING : 02.09.2015 02.09.2015 02.09.2015 02.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), BIKAN ER DATED 5 TH NOVEMBER, 2013. 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER:- 1. THAT THE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER IS NOT JUSTIFIED AS WELL AS ILLEGAL AND AGA INST THE LAW. THE LD.CIT(A) IS ERRED IN SUSTAINING THE ACTI ON OF A.O. U/S 148. 2. THAT THE PROCEEDINGS INITIATED UNDER SECTION 147/148 IS ILLEGAL AND AGAINST THE LAW BECAUSE THER E IS TIME FOR ASSESSMENT UNDER SECTION 143 AND IF THERE IS TIME FOR REGULAR ASSESSMENT NO REASSESSMENT ITA-70/JODH/2014 2 PROCEEDINGS CAN BE INITIATED. THE LD.CIT(A) IS ERR ED IN REJECTION OF THIS GROUND BECAUSE THERE IS NO ANY CONCRETE FINDING GIVEN BY THE CIT(A). 3. THAT THE ASSESSMENT IS OTHERWISE ILLEGAL AND AGAINST THE LAW BECAUSE THERE IS NO ANY SPECIFIC NO TICE OR OPPORTUNITY PROVIDED TO THE ASSESSEE UNDER SECTI ON 144 BEFORE ESTIMATION OF INCOME, WHICH IS AGAINST T HE PRINCIPLE OF LAWS OF INCOME TAX AS WELL AS NATURAL JUSTICE. 4. THAT WITHOUT PREJUDICE TO ABOVE, THE INCOME CALCULATED BY THE ASSESSING OFFICER IS ON VERY MUCH HIGHER SIDE IT IS ABOUT 44% OF THE GROSS RECEIPTS ESTIMATED BY HIM, WHICH IS QUITE IMPOSSIBLE IN ANY KIND OF BUSINESS IT IS OTHERWISE ILLEGAL AND AGAINST THE LAW BECAUSE IT IS ALSO WITHOUT CONFRONTING ANY COMPARAB LE CASE BEFORE ESTIMATION. 5. THAT THE ASSESSEE HIMSELF RECTIFY HIS ERROR DURI NG THE ASSESSMENT PROCEEDINGS THEREFORE THE SAME SHOUL D BE ACCEPTED, IF NOT THE REASONS MUST BE THERE AND M ADE KNOWN TO THE ASSESSEE. THE ENTIRE RECEIPTS ARE VERIFIABLE FROM THE BANK ACCOUNT OF THE ASSESSEE. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT EX PARTE ASSESSMENT WAS FRAMED BY THE ASSESSING OFFICER U/S 144 READ WITH SECTION 148 OF THE INCOME-TAX ACT, 1961. HE SUBMIT TED THAT THE ASSESSEE IS IN A POSITION TO PROVE ITS CASE AND THE RE IS NO DEFAULT ON THE PART OF THE ASSESSEE AND, THEREFORE, AN OPPORTUNITY MAY BE ALLOWED TO PROVE THE SAME BEFORE THE AUTHORITIES. 4. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER AND THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT( A). WE FIND THAT THE CLAIM OF THE ASSESSEE IS THAT INCOME WAS CALCULATED AT ABOUT 44% OF THE GROSS RECEIPTS ESTIMATED BY THE ASSESSING OFFIC ER WHICH WAS NOT POSSIBLE IN THE LINE OF TRADE OF THE ASSESSEE. THE ASSESSMENT IN THIS CASE WAS FRAMED EX PARTE U/S 144 READ WITH SECTION 148 OF THE ACT. IN ITA-70/JODH/2014 3 THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IN T HE INTEREST OF JUSTICE, IT SHALL BE JUSTIFIED TO AFFORD ONE MORE OPPORTUNIT Y TO THE ASSESSEE TO PROVE ITS CASE BEFORE THE REVENUE AUTHORITIES. ACC ORDINGLY, THE ORDERS OF AUTHORITIES BELOW ARE SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO PASS A DE NOVO ASSESSMENT ORDER IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPP ORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF ITS CASE BEFORE THE ASSESSING OFFICER. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 04.09.2015 . SD/- SD/- ( (( ( R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S SHIV KUMAR, VILLAGE 18 NP, M/S SHIV KUMAR, VILLAGE 18 NP, M/S SHIV KUMAR, VILLAGE 18 NP, M/S SHIV KUMAR, VILLAGE 18 NP, POST OFFICE 22 NP, TEHSIL RAISINGHNAGAR, POST OFFICE 22 NP, TEHSIL RAISINGHNAGAR, POST OFFICE 22 NP, TEHSIL RAISINGHNAGAR, POST OFFICE 22 NP, TEHSIL RAISINGHNAGAR, DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. DISTRICT SRIGANGANAGAR. 2. RESPONDENT : INCOME TAX OFF INCOME TAX OFF INCOME TAX OFF INCOME TAX OFFICER, WARD ICER, WARD ICER, WARD ICER, WARD- -- -3, SRIGANGANAGAR. 3, SRIGANGANAGAR. 3, SRIGANGANAGAR. 3, SRIGANGANAGAR. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR