Shri Vishal Bajaj, Indore V. THE ITO WARD 5(1), Indore

ITA 941/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5801 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD. JAVED
• Keywords: Principle of natural justice; Condonation of delay; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ I.T.A. NO. 941/IND/2016 / ASSESSMENT YEAR: 2011-12 SHRI VISHAL BAJAJ INDORE PAN AGLPB 2912K :: / APPELLANT VS INCOME TAX OFFICER 5(1) INDORE :: / RESPONDENT ! ' # $ / ASSESSEE BY SHRI RAJESH MEHTA %& ' # $ / REVENUE BY SHRI MOHD. JAVED - DR ' ( ' !) DATE OF HEARING 21. 2.2017 *+,- ' !) DATE OF PRONOUNCEMENT 2 8 .2.2017 / O R D E R PER SHRI C.M. GARG, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-II, INDORE, DATED 29.4.20 16 IN FIRST APPEAL NO. IT-53/14-15/23 FOR THE ASSESSMENT YE AR 2011-12. ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 2 APPLICATION FOR CONDONATION OF DELAY OF 55 D AYS 2. THE LEARNED ASSESSEES REPRESENTATIVE (AR) DRAWI NG OUR ATTENTION TO THE AFFIDAVIT SWORN BY THE ASSESSEE ON 12.9.2016 SUBMITTED THAT THE LEARNED CIT(A) PASSED THE ORDER STATING THAT NEITHER THE CASE WAS REPRESENTED PERSONALLY OR THRO UGH COUNSEL NOR ANY WRITTEN SUBMISSIONS WERE FILED. THE LEARNED COU NSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT FACTUALLY THE ASSES SEE FILED THE WRITTEN SUBMISSIONS BEFORE THE LEARNED CIT(A) ON 11 .3.2016 AND THE APPEAL BEFORE THE TRIBUNAL WAS DELAYED BECAUSE THE ASSESSEE TRIED TO GET THE FIRST APPELLATE ORDER RECTIFIED BY CONSI DERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE, BUT THE RECTIFICATION APPLICATION OF THE ASSESSEE U/S 154 OF THE INCOME TAX ACT, 1961 WAS NO T ACCEPTED BY THE LEARNED CIT(A). 3. REPLYING TO THE ABOVE, THE LEARNED DR VEHEMENTLY CONTENDED THAT WHEN THE ASSESSEE OR HIS AUTHORIZED REPRESENTA TIVE DID NOT APPEAR BEFORE THE LEARNED CIT(A) AND EVEN NO WRITTE N SUBMISSIONS WERE FILED DURING THE PROCEEDINGS THEN THE CAUSE ST ATED BY THE ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 3 ASSESSEE IN THE AFFIDAVIT CANNOT BE TAKEN AS GOSPEL TRUTH AND AS SUCH THE CONDONATION OF DELAY CANNOT BE ALLOWED TO THE ASSESSEE. 4. PLACING REJOINDER TO THE ABOVE SUBMISSIONS OF TH E LEARNED DR, THE LEARNED AR CONTENDED THAT IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED WRITTEN SUBMISSIONS BEFORE THE FIRST APPELLAT E AUTHORITY ON 11.3.2016 WHICH HAVE NOT BEEN CONSIDERED IN THE ORD ER PASSED ON 29.4.2016 AND REQUESTING FOR CONSIDERATION OF THESE WRITTEN SUBMISSIONS BY THE LEARNED CIT(A), THE ASSESSEE FIL ED RECTIFICATION APPLICATION U/S 154 OF THE ACT WHICH HAS NOT BEEN D ECIDED TILL DATE AND AFTER WAITING FOR A PRETTY LONG TIME, THE ASSES SEE FILED THIS APPEAL WHICH IS DELAYED BY 55 DAYS DUE TO THE REASO NS STATED IN THE AFFIDAVIT OF THE ASSESSEE WHICH REMAINED UNCONTROVE RTED BY THE REVENUE. 5. AFTER CAREFUL CONSIDERATION OF THE ABOVE SUBMISS IONS, WE ARE OF THE VIEW THAT THE FACTS STATED IN THE AFFIDAVIT OF THE ASSESSEE CLEARLY SHOW THAT HIS WRITTEN SUBMISSIONS DATED 11.3.2016 W ERE NOT CONSIDERED BY THE LEARNED CIT(A) IN THE EX-PARTE OR DER PASSED BY HIM AND EVEN THE RECTIFICATION APPLICATION OF THE A SSESSEE WAS NOT ADJUDICATED UPON BY THE FIRST APPELLATE AUTHORITY. THE FACTS STATED ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 4 IN THE AFFIDAVIT OF THE ASSESSEE DESERVE TO BE ACCE PTED AS THERE IS NO REBUTTAL ON BEHALF OF THE REVENUE. IN VIEW OF THE ABOVE, WE ARE SATISFIED THAT THE CAUSE SHOWN BY THE ASSESSEE FOR THE DELAY OF 55 DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL IS SUSTAINABLE AND ACCEPTABLE AND THE CASE OF THE ASSESSEE CANNOT BE D ISMISSED AT THE THRESHOLD MERELY BECAUSE THE APPEAL HAS BEEN FILED BELATEDLY DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESSEE. HEN CE, THE DELAY OF 55 DAYS IN FILING THE APPEAL IS CONDONED AND THE AP PLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY IS ALLOWED. RESUL TANTLY, THE APPEAL OF THE ASSESSEE IS ADMITTED FOR HEARING. 6. AT THE VERY OUTSET, AT THE REQUEST OF BOTH THE P ARTIES, WE HAVE HEARD THE ARGUMENTS ON GROUND NO. 1 OF THE ASSESSEE S APPEAL WHICH READS AS UNDER :- 1. THAT THE AGGREGATE ADDITION OF RS.4,20,390/- T O THE INCOME HAS BEEN DONE WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING AND WITHOUT ANY BASIS, IS ILLEGAL, WRONG, BAD IN LA W, AGAINST THE FACTS OF THE CASE AND HENCE LIABLE TO BE DELETE D. 7. THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE IMPUGNED ADDITION HAS BEEN MADE WITHOUT AFFORDING A NY ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 5 OPPORTUNITY OF HEARING TO THE ASSESSEE AND WITHOUT ANY BASIS, THUS THE SAME IS ILLEGAL, WRONG, BAD IN LAW AND AGAINST THE FACTS OF THE CASE, HENCE, LIABLE TO BE DELETED. THE LEARNED COUN SEL FOR THE ASSESSEE VEHEMENTLY POINTED OUT THAT THE LEARNED CI T(A) HAS PASSED THE ORDER BY VIOLATING THE PRINCIPLES OF NATURAL JU STICE AS HE HAS NOT AFFORDED DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND EVEN THE WRITTEN SUBMISSIONS OF THE ASSESSEE DATED 11.3.2016 PLACED ON RECORD OF THE LEARNED CIT(A) HAVE NOT BEEN CONSIDER ED IN THE IMPUGNED ORDER. 8. REPLYING TO THE ABOVE, THE LEARNED DR STRENUOUSL Y SUPPORTED THE FIRST APPELLATE ORDER AND SUBMITTED THAT WHEN T HE ASSESSEE IS NOT COOPERATING WITH THE LEARNED CIT(A) DURING THE FIRST APPELLATE PROCEEDINGS THEN HE HAS NO OPTION BUT TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. HOWEVER, THE LEARNED DR COULD NOT CONTROVERT THIS FACT THAT THE ASSESSEE HA S ACTUALLY FILED WRITTEN SUBMISSIONS DATED 11.3.2016 EXPLAINING HIS STAND AND CHALLENGING THE ADDITIONS MADE BY THE ASSESSING OFF ICER WHICH HAVE NOT BEEN CONSIDERED IN THE IMPUGNED ORDER. THE LEA RNED DR ALSO SUBMITTED THAT THE DEPARTMENT HAS NO SERIOUS OBJECT ION IF THE CASE IS RESTORED TO THE FILE OF THE LEARNED CIT(A) TO TH E STAGE OF THE FIRST ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 6 APPELLATE PROCEEDINGS, IF IT IS FOUND NECESSARY, JU ST AND PROPER IN THE INTEREST OF JUSTICE. 9. ON CAREFUL CONSIDERATION OF RIVAL SUBMISSIONS, W E ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS NOT BEEN ALLOWED D UE OPPORTUNITY OF HEARING AND HIS WRITTEN SUBMISSIONS (SUPRA) HAVE NOT BEEN CONSIDERED AT THE TIME OF PASSING OF THE IMPUGNED O RDER, THEREFORE, THE IMPUGNED ORDER PASSED, VIOLATING THE PRINCIPLES OF NATURAL JUSTICE, IS SET ASIDE AND THE CASE IS RESTORED TO T HE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION AFTER ALLOWING DUE OP PORTUNITY OF HEARING TO THE ASSESSEE. THE LEARNED CIT(A) SHALL D ECIDE THE APPEAL AFRESH WITHOUT BEING PREJUDICED FROM HIS EARLIER OR DER. 10. IN THE RESULT, GROUND NO. 1 IS ALLOWED. 11. SINCE WE HAVE RESTORED THE ENTIRE APPEAL TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION, THEREFORE, O THER GROUNDS OF THE ASSESSEE ON MERIT BECOME ACADEMIC IN NATURE AND WE ARE NOT ADJUDICATING THEM. 12. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ITA NO. 941/IND/2016 VISHAL BAJAJ VS. ITO 7 THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 28 TH FEBRUARY, 2017. SD/- SD/- $) & & (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER FEBRUARY 28 TH , 2017. DN/