Shri Shesh Kumar Dubey, Pratapgarh V. Deputy Commissioner of Income Tax, Circle, Sultanpur

ITA 91/ALLD/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9396 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PARVEEN GODBOLE
• Keywords: Non compliance; Assessment record; Set aside
• Section: 153A; 251; 145(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH , ALLAHABAD [ THROUGH VIRTUAL COURT ] BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER I . T . A . NO . 91 /ALLD/20 20 ASSESSMENT YEAR: 20 0 9 - 1 0 SHRI SHESH KUMAR DUBEY, VILLAGE AND POST KADIPUR, PRATAPGARH V S . DEPUTY COMMISSIONER OF INCOME TAX CIRCLE, SULTANPUR PAN: ABPPD54 5 3J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI PARVEEN GODBOLE , C . A RESPONDENT BY SHRI A.K. SINGH , SR . D . R DATE OF HEARING 20 /0 7 /2021 DATE OF PRONOUNCEMENT 29 /07 / 2021 O R D E R VIJAY PAL RAO, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 16 TH SEPTEMBER, 2019 OF CIT ( APPEALS ) FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - (I) THAT IN ANY VIEW OF THE MATTER ORDER PASSED U/S 153A/143(3) OF THE INCOME TAX ACT IS BAD BOTH ON THE FACTS AND IN LAW AND BY SUCH ORDER INCOME AS DETERMINED IS HIGHLY UNJUSTIFIED AND INCORRECT THEREFORE THE DECLARED INCOME SHOULD HAVE BEEN ACCEPTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. (II) THAT IN ANY VIEW OF THE MATTER THE LD. CIT(A) WAS HIGHLY UNJUSTIFIED IN DECIDING THE APPEAL EX - PARTE WITHOUT PROVIDING REASO NABLE OPPORTUNITY TO THE ASSESSEE WHEN ON CERTAIN DATED THERE WAS IN FACT NO SERVICE OF NOTICE HENCE THE ORDER OF CIT(A) IS NOT A SPEAKING ORDER IN THE EYES OF LAW. ITA NO. 91 /ALLD/2020 2 (III) THAT IN ANY VIEW OF THE MATTER PROCEEDING U/S 153A OF THE INCOME TAX ACT AS INITIATED AS PER NOTICE DATED 26.11.2013 IS ILLEGAL IN SO FAR AS BY SUCH ACTION SANCTITY OF ORIGINAL RETURN IS DISTURBED AND MOREOVER IN THE COURSE OF 132 A OF THE INCOME TAX ACT NO INCRIMINATING MATERIAL FOUND FOR START OF PROCEEDING. IN THESE BACKGROUNDS THE ASSE SSMENTS IS LIABLE TO BE CANCELLED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. (IV) THAT IN ANY VIEW OF THE MATTER THE ENTIRE ASSESSMENT PROCEEDING NO OPPORTUNITY WAS ALLOWED TO THE ASSESSEE NOR THE ISSUE/OBJECTION OF THE ASSESSEE WERE TAKEN INTO ACCOUNT HE NCE THE ASSESSMENT IS LEGAL AND THEREFORE ARE UNWARRANTED. (V) THAT IN VIEW OF THE MATTER ADDITION OF RS. 50,80,675.00/ - AS PER PARA 5 OF THE ASSESSMENT ORDER IS HIGHLY UNJUSTIFIED AND INCORRECT AND A NET RATE OF 8% AS APPLIED IS HIGHLY OBJECTIONABLE BECA USE NO DEFECT FOUND IN BOOKS, EARLIER ASSESSMENT RECORDS IS NEAT AND CLEAN, BOOKS ARE AUDITED, PROVISIONS OF SECTION 145(3) OF THE INCOME TAX ACT IS NOT APPLICABLE THEREFORE THE ADDITION MADE IN ARBITRARY AND ILLEGAL MANNER WITHOUT CONSIDERING THE FACTS PR OPERLY HENCE THE ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) IS HIGHLY UNJUSTIFIED. (VI) THAT IN ANY VIEW OF THE MATTER THE ENTIRE PROCEDURE ADOPTED BY THE ASSESSING OFFICER FOR ESTIMATING THE INCOME FROM CONTRACT BASIS IS HIGHLY UNJUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND FINDING AND OBSERVATION REGARDING MAKING OF HUGE ADDITION ARE INCORRECT THEREFORE THE DECLARED INCOME LIABLE TO BE ACCEPTED. (VII) THAT IN ANY VIEW OF THE MATTER THE APPELLANT RESERVES HIS RIGHT TO TAKE ANY F RESH GROUND OF APPEAL BEFORE HEARING OF THE APPEAL. (((( 3. AT THE OUTSET T HE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE CIT (AP PEAL) HAS PASSED AN EX - PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE SU MMARILY BY A NON - SPEAKING ORDER . THUS, THE LD. AR HAS SUBMITTED THAT IF GROUND NO. 2 DECIDED THE FIRST AND THE MATTER MAY BE REMANDED TO THE RECORD OF THE CIT (APPEAL) FOR THE FRESH ADJUDICATION ON MERITS THAN OTHER GROUNDS BECOME INFRUCTUOUS HAS THUS, PLEADED THAT THE IMPUGNED ORDER OF THE CIT (APPEAL) MAY BE SET ASIDE AND THE MATTER MAY BE REMANDED BACK TO THE RECORD OF THE CIT (APPEAL) FOR FRESH ADJUDICATION ON MERITS. ITA NO. 91 /ALLD/2020 3 4 . ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE CIT ( APPEAL ) HAS STATED IN THE ORDER THAT DESPITE NUMBER O F OPPORTUNITIES GRATED TO THE ASSESSEE N OBODY HAS ATTENDED THE PROCEEDING BEFORE THE CIT (APPEAL) AND THEREFORE THE CIT (APPEAL) HAD NO OPTION BUT TO PASS THE IMPUGNED EX - PARTE ORDER. 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE IMPUGNED ORDER OF THE CIT (APPEAL) . T HERE IS NO DISPUTE THAT CIT (APPEAL) HAS GRANTED SEVERAL OPPORTUNITIES TO THE ASSESSEE BUT NO ONE ATTENDED THE PROCEEDING BEFORE THE CIT (APPEAL). THE CIT (APPEAL) FINALLY DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION IN PARA 6 AND 7 OF THE IMPUGNED ORDER AS UNDER: 6. THE AFORESAID NON COMPLIANCES REVEALS BEYOND DOUBT THAT THE APPELLANT HAS NOTHING TO SAY IN THE MATTER OF PRESENT APPEAL. THUS, I T APPEARS THAT THE ASSESSEE IS NOT INTEREST ED IN PROSECUTION OF THE PRESENT APPEAL AND THE SAME IS LIABLE TO BE DISMISSED ON THIS GROUND ITSELF. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN THE WELL - KNOWN DICTUM VIGILATIBUS , NON DORMENTIBUS, JURA SUBVENIUNT. CONSIDERING THE FACTS AND RELYING ON THE DECISION OF THE HON'BLE I.T.A.T., DELHI BENCH, IN THE CASE OF CIT VS. MULIPLAN INDIA LTD. REPORTED IN 38 - ITD - 320 AND THE JUDGMENT OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJI RAO HOLKER VS. CWT (1997) REPORTED IN 223 - ITR - 480 THE PRESENT APPEAL IS HEREBY DISMISSED. NO DOCUMENTARY EVIDENCE OR W RITTEN SUBMISSIONS WERE FILED IN SUPPORT OF GROUNDS OF APPEAL FILED. 7. THE APPELLANT HAS RAISED GROUNDS 1 TO 7, WHICH CHALLENGED THE ADDITION OF RS. 50,80,675/ - MADE BY THE ASSESSING OFFICER. IT IS NOTED THAT THE APPEAL OF THE APPELLANT HAS BEEN DISMISSED BY ME FOR ON PROSECUTION IN PARA 6. IN VIEW THEREOF THE VARIOUS GROUNDS RAISED IN APPEAL HAVE BECOME ACADEMIC IN NATURE. 6 . THUS IT IS CLEAR THAT THE CIT (APPEAL) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR NON - PROSECUTION AND HAS NOT ADJUDICATED THE GROUNDS RAISED BY THE ASSESSEE, CHALLENGING THE ADDITION MADE BY THE ASSESSING OFFICER. HENCE, THE IMPUGNED ORDER OF THE CIT (APPEAL) NOT DECIDING THE ISSUES ON MERITS IS A NON - SPEAKING ORDER WHICH IS CONTRA RY TO THE PROVISIONS OF SECTION 251 OF THE INCOME TAX ACT. SINCE, THE CIT (APPEAL) HAS NOT DECIDED THE APPEAL OF THE ASSESSEE ON MERITS AND PARTICULARLY THE GROUNDS RAISED BY THE ASSESSEE THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE IMPUGNED O RDER OF THE CIT (APPEAL) ITA NO. 91 /ALLD/2020 4 IS SET ASIDE AND THE MATTER IS REMANDED TO THE RECORD OF THE CIT (APPEAL) FOR FRESH ADJUDIC ATION OF THE APPEAL ON MERITS A FTER GIVING ONE MORE OPPORTUNITY OF HE ARING TO THE ASSESSEE. SINCE, THE MATTER IS SET ASIDE TO THE RECORD OF THE CIT (APPEAL) FO R FRESH ADJUDICATION ON MERITS T HEREFORE, THE OTHER G ROUNDS OF THE APPEAL BECOME INFRUCTUOUS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE O RDER IS PRONOUNCED IN THE OPEN COURT THROUGH VIDEO CONFERENCING ON 29 /07/ 2021. SD/ - SD/ - (RAMIT KOCHAR) (VIJAY PAL RAO) A CCOUNTANT M EMBER JUDICIAL MEMBER ALLAHABAD DATED: 29 /0 7 /2021 KD . COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR, I.T.A.T. 6. GUARD FILE BY ORDER (I.T.A.T., ALLAHABAD) TRUE COPY