M/s Jamal Industries, Kanpur V. Income Tax Officer -3(2), Kanpur

ITA 820/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78462 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 26-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.820/LKW/2013 ASSESSMENT YEAR:2007 - 08 M/S JAMAL INDUSTRIES, 92/16, PECH BAGH, KANPUR. PAN:AABFJ1772D VS. INCOME TAX OFFICER, WARD - 3(2), KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI PRAVEEN KUMAR, ADVOCATE RESPONDENT BY SHRI AJAY KUMAR, D.R. DATE OF HEARING 25/02/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, KANPUR DATED 11/09/2013 FOR ASSESSMENT YEAR 2007 - 08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: ( A ) BECAUSE THE NOTICES DATED 24.05.2012, 25.06.2012 AND 08.08.2013 FOR APPEARANCE ON 08.06.2012, 05.07.2012 AND 10.09.2013 RESPECTIVELY WERE NOT SERVED UPON THE ASSESSEE THEREFORE, THE EX - PARTE ORDER PASSED BY THE COMMISSIONER (APPEALS) IS NOT SUSTAINABLE IN THE EYE OF LAW. ( B ) BECAUSE THE COMMISSI ONER (APPEALS) DID NOT BOTHER TO CONSIDER THE REPORT OF THE POSTAL DEPARTMENT WITH REGARD TO NON SERVICE OF NOTICES ISSUED FOR HEARING, WHICH WERE ACTUALLY RETURNED WITH THE REMARK 'NOT KNOWN' WHICH CLEARLY SHOWS THAT THE SERVICE OF NOTICE WAS NOT COMPLETE . 2 ( C ) BECAUSE THE ADDRESS OF THE ASSESSEE IS PRESENT IN THE RECORDS OF THE AUTHORITY AND ON THE SAME ADDRESS THE COPY OF THE IMPUGNED ORDER DATED 11.09.2013 HAS BEEN SERVED THEREFORE/ THIS FACT CAN ALSO NOT BE PRESUMED THAT THE ADDRESS OF THE ASSESSEE IS NOT TRACEABLE. ( D ) BECAUSE ALONG WITH THE APPEAL, THE ASSESSEE HAD FILED ALL THE RELEVANT DOCUMENTS AND EVIDENCE IN SUPPORT OF HIS CLAIM BUT THE COMMISSIONER (APPEALS) HAS GIVEN A WRONG FINDING THAT THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE IN SUPP ORT OF HIS CLAIM. ( E ) BECAUSE THE ASSESSEE FILED EVIDENCE TO DEMONSTRATE THAT ALL THE ENSURED LOANS, SUNDRY AND SUNDRY DEBTORS ARE GENUINE AND THEREFORE THE ORDER OF THE ASSESSEE OFFICER WAS NOT SUSTAINABLE. ( F ) BECAUSE THE ASSESSEE HAS FILED EVIDENCE WITH REGARD TO THE REASONS FOR NON APPEARANCE OF THE PARTNERS OF THE FIRM OR THE ACCOUNTANT ON THE DATE FIXED, BEFORE THE ASSESSEE OFFICE. ( G ) BECAUSE THE COMMISSIONER (APPEALS) DID NOT CONSIDER THE GROUNDS OF APPEAL A ND THE EVIDENCE FILED BY THE ASSESSEE WHILE PASSING THE IMPUGNED ORDER DATED 11.09.2013 HENCE THE SAME IS LIABLE TO BE QUASHED BY THIS HON'BLE TRIBUNAL. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ALTHOUGH THE ASSESSEE COULD NOT APPEAR BEFOR E LEARNED CIT(A) ON THREE DATES ON WHICH THE HEARING WAS FIXED BY CIT(A) BUT THE SAME WAS FOR THE REASON THAT SHRI BUDRUDDIN, WHO IS ABOUT 90 YEARS IS THE MAIN PARTNER AND LOOKS AFTER THE TAXATION MATTER AND ACCOUNTS, WAS MUCH DISTURBED DUE TO ILLNESS OF H IS WIFE SMT. MERAJUN NISA AND HIS SON NAME D AS NAYABUDDIN. IT IS ALSO SUBMITTED BY HIM THAT SMT. MERAJUN NISA WAS CONFINED TO BED AND HOSPITALIZED DURING THAT PERIOD. HE SUBMITTED THAT CONSIDERING THESE FACTS, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 4. AS AGAINST THIS, LEARNED D.R. OF THE REVENUE SUBMITTED THAT SUFFICIENT OPPORTUNITIES HAVE BEEN PROVIDED BY CIT(A) AND THE ASSESSEE DOES NOT DESERVE FRESH OPPORTUNITY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CONSIDERING THESE FACTS THAT THE MAIN PARTNER WHO WAS LOOKING AFTER TAXATION AND ACCOUNTS WAS DISTURBED BECAUSE OF ILLNESS OF HIS WIFE AND CONSIDERING HIS OLD AGE, WE FEEL THAT IN THE INTEREST OF JUSTICE, THE MATTER SHOULD BACK TO THE FILE OF CIT(A) FOR FRESH DECISION. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH TH E SIDES. 6. SINCE THE ENTIRE ISSUE IS RESTORED BACK TO THE FILE OF LEARNED CIT(A), WE DO NOT FIND ANY REASON TO DECIDE THE ISSUES ON MERIT. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDI CIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /04/2014. *C.L.SINGH 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