SANJAY KUMAR AGARWAL, Jaipur V. ITO, Sikar

ITA 76/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9721 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: MAHENDRA GANGIEYA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 76/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SANJAY KUMAR AGARWAL, CHIRANJI PANWARI KI GALI, SIKAR. CUKE VS. INCOME TAX OFFICER, WARD-1, SIKAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADIPA 5507 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GANGIEYA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/03/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 06/03/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 05/10/2016 PASSED BY THE LD. CIT(A)-35, NEW DELHI/CA MP OFFICE AT JAIPUR FOR THE A.Y. 2009-10, WHEREIN THE ASSESSEE HA S RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) OF THE ACT DATED 08/23.05.2012 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF ITA 76/JP/2017_ SANJAY KUMAR AGARWAL VS ITO 2 JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME KINDLY BE QUASHED. 2. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN NOT PROVIDING ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD AND IN CONFIRMING THE IMPOSITION OF THE PENALTY COMPLETELY WITHOUT APPLICATION OF MIND AND IN A HASTE WHICH WAS IN GROSS VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE AND HENCE, SUCH AN ORDER OF THE LD. CIT(A) BE QUASHED OR ALTERNATIVELY, KINDLY BE RESTORED TO HIS FILE FOR A DECISION AFRESH THEREON. 3. RS. 1,93,590/-:- THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPOSING A PENALTY U/S 271(1)(C) OF THE ACT OF RS. 1,93,590/-. THE PENALTY SO IMPOSED BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 2. THE MAIN ISSUE INVOLVED IN THIS APPEAL IS AGAINST CONFIRMING THE PENALTY OF RS. 1,93,590/- MADE U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). THE AR OF TH E ASSESSEE HAS SUBMITTED A PRAYER FOR MODIFICATION OF THE GROUNDS. HOWEVER, THE LD. SR.DR HAS SUBMITTED THAT THIS IS NOT A MODIFICATION OF GROUND BUT THE ASSESSEE IS TAKING A NEW GROUND IN THE FORM OF GROUN D NO. 5, WHICH CAN ONLY BE TAKEN BY SUBMITTING AN APPLICATION FOR ADDI TIONAL GROUND. ITA 76/JP/2017_ SANJAY KUMAR AGARWAL VS ITO 3 3. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES ON THE ISSUE OF MODIFIED GROUNDS AND PERUSED THE MATERIAL AVAILA BLE ON THE RECORD. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES, I FULLY CONCUR WITH THE SUBMISSION OF THE LD. SR.DR THAT GROUND NO. 5 TAKEN BY THE ASSESSEE IS AN ADDITIONAL GROUND NOT A MODIFIED GROUND. IN ABSE NCE OF ANY APPLICATION FOR ADDITIONAL GROUND, PRAYER OF THE AS SESSEE FOR MODIFICATION OF THE GROUNDS IS NOT MAINTAINABLE, HE NCE, THE SAME IS HEREBY DISMISSED. 4. THE ONLY ISSUE REMAINS TO BE DECIDED IS THE MERIT OF THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. THE LD AR OF THE A SSESSEE HAS SUBMITTED THAT THE LD. CIT(A) WAS ON TOUR I.E. IN THE CAMP OFFICE AT JAIPUR AND NO PROPER AND EFFECTIVE OPPORTUNITY OF H EARING WAS GIVEN TO THE ASSESSEE, THEREFORE, OPPORTUNITY FOR HEARING MA Y BE GRANTED AND THE ISSUE MAY BE RESTORED BACK TO THE FILE OF THE L D. CIT(A). LD. SR. DR OPPOSED THE SUBMISSIONS OF THE LD. AR FOR SETTING A SIDE THE ISSUE TO THE FILE OF LD. CIT(A). 5. I HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND PE RUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THA T THE ORDER MADE BY THE LD. CIT(A) IS AN EX PARTE ORDER. THE LD. CIT(A) WAS ON TOUR TO JAIPUR AND THE CIRCUMSTANCES SUGGEST THAT THE ASSESSEE WAS DEPRIVED OF ITA 76/JP/2017_ SANJAY KUMAR AGARWAL VS ITO 4 PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD, TH EREFORE I AM OF THE VIEW THAT, IN THE INTEREST OF JUSTICE, IT WILL BE FA IR AND JUST TO RESTORE THE ISSUE IN APPEAL TO THE LD. CIT(A) FOR FRESH ADJUDICA TION. THE LD. CIT(A) SHALL PROVIDE PROPER AND EFFECTIVE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. ACCORDINGLY, THIS ISSUE IS RESTORED TO TH E FILE OF THE LD. CIT(A). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/03/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06 TH MARCH, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SANJAY KUMAR AGARWAL, SIKAR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-1, SIKAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 76/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR