Ameeta Singh, Lucknow V. Income Tax Officer-2(1), Lucknow

ITA 823/LKW/2014

• Counselvise Citation: 82323714 RSA 2014
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PINKI MAHAVAR
• Assessee Lawyers: P K KAPOOR
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Retraction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.823/LKW/2014 ASSESSMENT YEAR:2009-10 AMEETA SINGH 13, SARDAR PATEL MARG CANTT., LUCKNOW V. INCOME TAX OFFICER 2(1) LUCKNOW TAN/PAN:AQIPS5307G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P. K. KAPOOR, C.A. RESPONDENT BY: SMT. PINKI MAHAVAR, D.R. DATE OF HEARING: 05 02 2015 DATE OF PRONOUNCEMENT: 16 02 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS, WHICH ARE AS UNDER:- 1. BECAUSE THE ID. 'CIT(A)' WAS NOT JUSTIFIED IN PASSING THE EX-PARTE ORDER WITHOUT GIVING DUE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSE AND CONSEQUENTLY, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE AND RESTORED BACK TO 'CIT(A)' FOR BEING PASSED AFRESH AFTER AFFORDING DUE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. BECAUSE THE ASSESSEEWAS NOT IN A POSITION TO MAKE DUE AND EFFECTIVE SUBMISSION BEFORE THE 'CIT(A)'IN THE ABSENCE OF SEVERAL DOCUMENTARY EVIDENCES RELEVANT FOR THE PURPOSE WHICH HAD NOT YET BECOME AVAILABLE TO HER FROM THE ASSESSING OFFICER AND THE INFORMATION TO THIS EFFECT HAVING BEEN GIVEN TO THE ID. 'CIT(A)', HE :- 2 -: SHOULD HAVE PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO OBTAIN THE SAME FROM THE ASSESSING OFFICER AND TO MAKE PROPER SUBMISSION, AND SUCH AN OPPORTUNITY HAVING BEEN DERIVED TO THE ASSESSEE, THE IMPUGNED ORDER DESERVES TO BE SET ASIDE AND THE MATTER INVOLVED IN APPEAL DESERVES TO BE RESTORED TO 'CIT(A)' FOR BEING DECIDED ON MERITS AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. BECAUSE THE ASSESSEE HAD MADE SPECIFIC PRAYER TO CALL FOR THE RECORDS FROM THE 'ASSESSING OFFICER', THE ID. 'CIT(A)' OUGHT TO HAVE CALLED FOR THE ASSESSMENT RECORDS AND HE SHOULD HAVE FURTHER ALLOWED THE ASSESSEE TO OBTAIN COPIES OF RELEVANT DOCUMENTS THERE- FROM AND MAKE PROPER SUBMISSION BEFORE HIM AND SUCH A COURSE OF ACTION NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER PASSED BY THE 'CIT(A)' IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND THE SAME DESERVES TO BE SET ASIDE FOR BEING PASSED AFRESH AFTER PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSE. 4. BECAUSE IN ANY CASE, LOOKING TO THE SUBSTANTIAL TIME GAPE BETWEEN THE LAST DATE OF HEARING AND DATE ON WHICH THE IMPUGNED ORDER HAS BEEN PASSED, THE LD.'CIT(A)' OUGHT TO HAVE PROVIDED ONE FINAL OPPORTUNITY OF HEARING TO THE ASSESSEEE. WITHOUT PREJUDICE TO THE AFORSAID 5. BECAUSE THE ASSESSEE HAD CHALLENGED THE VALIDITY OF NOTICE UNDER SECTION 143(2) DATED 23.09.2010 BY WAY OF GROUND NOS. 1 & 2 RAISED BEFORE THE 'CIT(A)' BUT THE SAID GROUNDS HAVE NOT BEEN DEALT WITH BY HIM, THE IMPUGNED ORDER IS BAD IN LAW AND DESERVES TO BE SET ASIDE. 6. BECAUSE THE 'ASSESSING OFFICER' HAS ERRED IN LAW AND ON FACTS IN SUBSTITUTING THE 'APPELLANT'S' VERSION OF AGRICULTURAL INCOMEAT RS. 10,58,670/- BY RS. 1,39,244/-AND IN TREATING THE DIFFERENCE AMOUNTING TO RS. 9,18,427/- AS INCOME UNDER THE HEAD 'INCOME FROM OTHER SOURCES' AND SUBJECTING THE SAME TO THE ASSESSMENT, AND CONSEQUENTLY, THE 'CIT(A)' SHOULD HAVE DIRECTED THE ASSESSING :- 3 -: OFFICER TO ACCEPT THE AGRICULTURAL INCOME DECLARED BY THE ASSESSEE AS SUCH. 7. BECAUSE THE 'APPELLANT'S' VERSION OF INCOMEUNDER THE HEAD AGRICULTURAL INCOME WAS BASED ON THE PURCHASE VOUCHERS ISSUED BY RECOGNIZED BUYERS OF AGRICULTURAL PRODUCE AND THE SAME COULD NOT HAVE BEEN REJECTED ON THE BASIS OF- (A) DATA SAID TO HAVE BEEN DOWNLOADED FROM THE WEBSITE OF MCX; AND (B) RETRACTION MADE BY THE BUYERS OF THE AGRICULTURE PRODUCE, AT THE BACK OF THE 'APPELLANT' 8. BECAUSE THE DATA DOWNLOADED FROM THE WEBSITE OF MCX CANNOT BE TREATED TO BE THE RATES OF AGRICULTURE PRODUCE WHICH VARY VERY WIDELY, DEPENDING UPON THE QUALITY OF CROP AT THE TIME OF SALE AND ALSO REGION IN WHICH THE SALES HAD TAKEN PLACE. 9. BECAUSE SIMILARLY THE RETRACTION MADE BY THE BUYERS OF AGRICULTURE PRODUCE WHICH BELONGS TO ORGANIZED SECTOR, WAS ALSO NOT 'RELIANCE WORTHY' AS THE 'APPELLANT' HAS NOT BEEN GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE THIRD PARTY MAKING CULPABLE STATEMENT. 10. BECAUSE IN ANY CASE THE ESTIMATE OF INCOME FROM AGRICULTURE AS MADE BY THE 'ASSESSING OFFICER' COULD BE SAID TO BE REASONABLE AS THE SAME IS EVEN IN CONFLICT WITH THE INFORMATION DOWNLOADED FROM THE WEBSITE OF MCX AND ACCORDINGLY SUCH AN ESTIMATE (AS MADE BY THE 'ASSESSING OFFICER' IS NOT SUSTAINABLE, EITHER ON FACTS OR IN LAW. 11. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED AN OBJECTION THAT THE LD. CIT(A) HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, THE MATTER MAY BE RESTORED TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD AND ALSO IN THE LIGHT OF THE RELEVANT :- 4 -: EVIDENCE FILED BEFORE THE ASSESSING OFFICER. THE LD. CIT(A) HAS FURTHER CONTENDED THAT DURING THE COURSE OF HEARING BEFORE THE LD. CIT(A), A SPECIFIC REQUEST WAS MADE TO CALL FOR ASSESSMENT RECORD, AS THE ASSESSEE HAS ALREADY FILED EVIDENCE, BUT THE LD. CIT(A) DID NOT CALL FOR THE ASSESSMENT RECORD. THE ASSESSEE HAS ALSO TRIED TO OBTAIN CERTIFIED COPIES OF EVIDENCE FILED BEFORE THE ASSESSING OFFICER, BUT THE ASSESSEE COULD NOT OBTAIN THE SAME BEFORE CONCLUSION OF THE HEARING OF APPEAL BEFORE THE LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE LIGHT OF THESE FACTS, THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO HIS FILE FOR RE-ADJUDICATION. 3. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4. HAVING CAREFULLY PERUSED THE ORDER OF THE LD. CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS AFFORDED NUMBER OF OPPORTUNITIES TO THE ASSESSEE, BUT IT IS NOT CLEAR FROM THE ORDER OF THE LD. CIT(A) WHETHER THE ASSESSMENT RECORD WAS CALLED FOR BY HIM OR NOT. IT IS ALSO NOT EVIDENT FROM THE ORDER OF THE LD. CIT(A) WHETHER THE ASSESSEE HAD EVER MADE ANY REQUEST FOR OBTAINING THE ASSESSMENT RECORD. FROM A CAREFUL READING OF THE ORDER OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR PLACING RELEVANT EVIDENCE ON RECORD. WHEN A SPECIFIC REQUEST WAS MADE TO CALL FOR THE ASSESSMENT RECORD FOR PERUSAL OF EVIDENCE FILED BY THE ASSESSEE, THE LD. CIT(A) SHOULD HAVE CALLED THE ASSESSMENT RECORD FOR ADJUDICATING THE IMPUGNED ISSUES RAISED BEFORE HIM. SINCE PROPER OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE WHILE DISPOSING OF THE APPEAL, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF NEED BE, THE ASSESSMENT RECORD MAY BE CALLED AND RE- :- 5 -: EXAMINED IN THE LIGHT OF ASSESSEES CONTENTIONS. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORT OF CO-OPERATION TO THE LD. CIT(A) AND ALSO TO FILE EVIDENCE, ON WHICH ASSESSEE WANTS TO PLACE RELIANCE. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE FOR RE-ADJUDICATION IN TERMS INDICATED ABOVE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH FEBRUARY, 2015 JJ:0502 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR