Dr. Nirmal Kheria, Kanpur V. Dy. Commissioner Of Income Tax, Kanpur

ITA 908/LKW/2014

• Counselvise Citation: 90823714 RSA 2014
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-03-2015
• Assessment Year: misc
• Appeal Filed On: 22-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIVEK MISHRA
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice
• Section: 54; 154

Judgement Text

1 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.908/LKW/2014 BLOCK PERIOD ENDING ON 13/08/1999 DY.C.I.T., CENTRAL CIRCLE - 1, KANPUR. VS DR. NIRMAL KHERIA, 26/109 - B, BIRHANA ROAD, KANPUR. PAN:ABAPK0651Q (RESPONDENT) (APPELLANT) SHRI P. K. KAPOOR, C.A. APPELLANT BY SHRI VIVEK MISHRA, C.I.T., D. R. RESPONDENT BY 31/03/2015 DATE OF HEARING 05 /06/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT ( A) - I, KANPUR DATED 23/09/2014 FOR THE BLOCK PERIOD ENDING ON 13/08/1999. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE ' CIT ( A)' HAS ERRED IN LAW AND ON FACTS IN SETTING ASIDE THE ORDER DATED 27.06.2008 PASSED BY THE ASSESSING OFFICER AND ISSUING HIM THE FOLLOWING DIRECTION IN PARA 4.2.2 OF HIS ORDER: 'THE A.O. IS HEREBY DIRECTED TO REEXAMINE THE ORDER O F HON'BLE ITAT & RECOMPUTE THE INCOME ON ABOVE TWO HEADS IN LIGHT OF THE SAID ORDER OF HON'BLE ITAT. IN CASE THE CLAIM OF ASSESSEE IS INCORRECT NO RELIEF SHALL BE ALLOWABLE'. 2. BECAUSE THE DIRECTION CONTAINED IN PARA 4.2.2 OF THE IMPUGNED ORDER PASSED BY THE 'CIT(A)' AMOUNTS TO SETTING ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER, 2 WHICH IS CONTRARY TO THE PROVISIONS CONTAINED IN SECTION 251 OF THE 'ACT'. 3. BECAUSE THE ' CIT ( A)' HAS FAILED TO DECIDE THE APPEAL AS PER PROVISIONS CONTAINED IN SECTION 25 1 OF THE 'ACT' AND AS SUCH, THE ORDER PASSED BY ' CIT ( A)' IS LIABLE TO BE SET ASIDE AND THE MATTER BE RESTORED TO HIM TO DECIDE HIMSELF THE ISSUES RAISED IN APPEAL FILED BEFORE HIM AGAINST ORDER UNDER SECTION 154/254/251/158BC, DATED 27.06.2008. 4. BECAUSE THERE WAS NO MISTAKE IN REVISION ORDER DATED 16.05.2008 PASSED UNDER SECTION 254/158BC OF THE ACT WARRANTING RECTIFICATIO N UN DER SECTION 1 54 OF THE 'ACT' AND ON A DUE CONSIDERATION OF THIS FACT ALONE, THE L D. ' CIT ( A)' SHOULD HAVE HELD THAT THE ORD ER DATED 27.06.2008 PASSED BY ASSESSING OFFICER WAS BEYOND SCOPE OF SECTION 154 OF THE 'ACT' AND AS SUCH SHOULD HAVE ALLOWED THE ASSESSEE'S APPEAL BEFORE HIM IN FULL. 5. BECAUSE TO THE EXTENT MENTIONED IN THE FORGOING GROUNDS, THE ORDER APPEALED AGAINST I S CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE TRIBUNAL ORDER DATED 20/12/2007 IN I.T.A. NO.335/LKW/2002 AND 349/LKW/2002 IS AVAILABLE ON PAGES 39 TO 57 OF THE PAPER BOOK. HE DRAWN OUR ATTENTION TO P ARA 17 OF THE TRIBUNAL ORDER , WHICH IS AVAILABLE ON PAGE NO. 47 OF THE PAPER BOOK. THEREAFTER, HE DRAWN OUR ATTENTION TO PARA NO. 4.2.2 OF THE ORDER OF CIT ( A) AND SUBMITTED THAT CIT ( A) CANNOT GIVE SUCH DIRECTION AS HAS BEEN GIVEN BY HIM AS PER THIS PARA OF HIS ORDER. HE ALSO SUBMITTED THAT HIS ORDER IS VERY CRYPTIC AND THE ORDER PASSED BY THE ASSESSING OFFICER U/S 154 IS BEYOND THE SCOPE OF SECTION 154 OF THE ACT. HE ALSO SUBMI TTED THAT IN ANY CASE, THE MATTER SHOULD GO BACK TO CIT(A) BECAUSE HIS IMPUGNED ORDER IS VERY CRYPTIC. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT ( A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE THAT THE ORDER OF CIT ( A) IS 3 VERY CRYPTIC . WE REPRODUCE THE OPERATIVE PORTION OF THE ORDER OF LEARNED CIT ( A) A S PER P ARA 4.2.1 AND 4.2.2, WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 4.2.1 THE MATTER REVOLV ES ON A SMALL ISSUE OF INCLUSION / EXCLUSION OF AMOUNT OF RS.5,00,000/ - AS INCOME FROM UNDISCLOSED SOURCES/MEDICAL PROFESSION & RS.1,34,000/ - AS CAPITAL GAIN FOR AGRICULTURAL LAND AT BADARKA. 4.2.2 THE ASSESSING OFFICER IS HEREBY DIRECTED TO REEXAMINE THE ORDER OF HON'BLE I.T.A.T. AND RECOMPUTED THE INCOME ON ABOVE TWO HEADS IN LIGHT OF THE SAID ORDER OF HON'BLE I.T.A.T. 6. FROM THE ABOVE PARAS FROM THE ORDER OF CIT(A), WE FIND THAT THE ISSUE WAS DECIDED BY CIT(A) IN VERY CRYPTIC MANNER WITHOUT GIVING AN Y REASONING AND WITHOUT INDICATING ANY BASIS FOR HIS DECISION. WE, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION BY WAY OF PASSING A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS 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 ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 /06/2015 *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