Shyamsunder Gupta, V. Income Tax Officer, ward- Katni,

ITSSA 2/JAB/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3467 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 18-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V B SARGAR
• Keywords: Gift; Principle of natural justice
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI PARTHA SARTHI CHAUDHURI, JUDICIAL MEMBER (SS) ./ I.T(SS).A. NOS.2 & 3/JAB/2016 ( / ASSESSMENT YEARS: 2000-01 & 2001-02) SHRI SHYAMSUNDER GUPTA P/O M/S.PETROL TRADE CO. JHUKEHI, KATNI / VS. INCOME TAX OFFICER WARD KATNI ./ ./ PAN/GIR NO. : AFWPG 3449 L ( ( / APPELLANT ) .. ( )( / RESPONDENT ) ( / APPELLANT BY : SHRI VIJAY GUPTA, CA )( + / RESPONDENT BY : SHRI V.B. SARGAR, DR + / DATE OF HEARING 13/11/2017 + / DATE OF PRONOUNCEMENT 13/11/2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX(APPEA LS)-2, JABALPUR (MP) [CIT(A) IN SHORT] IDENTICALLY DATED 01/01/2016 IN THE MATTER OF ASSESSMENT ORDER UNDER S.153C OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS 'THE ACT') DATED 25/10/2017 RELEVANT TO ASSESSM ENT YEARS (AYS) 2000-01 & 2001-02. IT(SS)A NOS.2 & 3/J AB/2016 SHRI SHYAMSUNDER GUPTA VS. ITO ASST.YEARS 2000-01 2001-02 - 2 - 2. SINCE THE ISSUES ARE INTER-CONNECTED, BOTH THESE AP PEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. IT(SS)A NO.2/JAB/2016 AY 2000-01 ASSESSEES APPEAL 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS UNDER:- 1. CONSIDERING THE FACT THAT THE NOTICE OF FIXING THE HEARING OF THE APPEAL ON 29.12.20015 WAS SERVED ON THE APP AFTER THE DATE OF HEARING HENCE THE LD.CIT(A) ERRED IN DISMISSING THE APPEAL FOR NON-REPRESENTATION. WITHOUT PREJUDICE TO ABOVE 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) SHOULD HAVE HELD THAT INITIATION OF PROCEEDING UNDER SECTION 153C IS BAD IN LAW AND SHOULD HAVE CANCELLED THE ASSESSMENT ORDER DATED 25.10.2007. 3. CONSIDERING THE FACT THAT NO INCRIMINATING DOCUMENT WAS FOUND IN THE SEARCH OF GROUP GROUP TO SUGGEST THAT GIFT OF RS.5 LAC RECEIVED BY THE APPELLANT REPRESENTED HIS UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR 2000-01 HENCE THE LD.CIT(A) SHOULD HAVE HELD THAT THE INITIATION OF PROCEEDING UNDER SECTION 153C IS BAD IN LAW. 4. THE LD.CIT(A) SHOULD HAVE HELD THAT THE LD.AO WAS NOT JUSTIFIED IN ASSESSING THE GIFT OF RS.5 LAC RECEIVED BY APPELLANT AS HIS UNDISCLOSED INCOME. 5. THE ASSESSMENT ORDER DATED 25.10.2007 AND LD.CIT(A) ORDER DATED 01.01.2016 IS BAD IN LAW HENCE MAY KINDLY BE CANCELLED. IT(SS)A NOS.2 & 3/J AB/2016 SHRI SHYAMSUNDER GUPTA VS. ITO ASST.YEARS 2000-01 2001-02 - 3 - 4. THE LD.AR MR.MUKESH V.AGRAWAL FOR THE ASSESSEE, AT T HE OUTSET, SUBMITTED THAT THE ORDER PASSED BY THE CIT(A) IS AN EX-PARTE ORDER WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LD.AR SUBMITTED THAT THE CASE WAS FIXED BEFORE THE INCUMBENT CIT(A) BY ISSUE OF NOTICE DATED 10/12/2015 WHEREBY THE CASE WAS FIXED FOR HE ARING ON 29/12/2015. THE LD.AR POINTED OUT THAT THE NOTICE OF HEARING ITSELF WAS SERVED UPON THE ASSESSEE ON 30/12/2015 AND THE ORDER WAS PASSED ON 01/01/2016. IN THESE CIRCUMSTANCES, THE ASSESSEE COULD NOT ATTE ND AND COMPLY WITH THE NOTICE OF HEARING. THE LD.AR SUBMITTE D THAT IN THESE CIRCUMSTANCES, THE EX-PARTE ORDER OF THE CIT(A) REQUIRES TO BE SET ASIDE FOR DE NOVO ADJUDICATION OF APPEAL. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF T HE CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE PRELIMINARY OBJECTION MADE ON BEHALF OF THE ASSESSEE TOW ARDS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IN NOT GIVING OPPORTUNITY OF HE ARING WHILE ADJUDICATION OF APPEAL AGAINST THE ASSESSEE. AS POINTE D OUT ON BEHALF OF THE ASSESSEE, IT IS OSTENSIBLE THAT THE NOTICE WAS SE RVED ON THE ASSESSEE AFTER THE DATE OF HEARING AND IMMEDIATELY THEREAFTER THE APPELLATE ORDER WAS PASSED. GLARINGLY, THE OPPORTUNITY WAS NOT PROVIDED. THUS, ON THIS GROUND ALONE, THE MATTER REQUIRES TO BE SET ASIDE AND REST ORED TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS AFTER GIVING FAIR OPPORTUNI TY OF HEARING IT(SS)A NOS.2 & 3/J AB/2016 SHRI SHYAMSUNDER GUPTA VS. ITO ASST.YEARS 2000-01 2001-02 - 4 - TO THE ASSESSEE. HOWEVER, WE MAY HASTEN TO NOTE THAT TH E ASSESSEE HAS BEEN A NON-COMPLIANT OF STATUTORY NOTICES. THE PREDECE SSOR CIT(A) HAD GIVEN MANY OPPORTUNITIES TO THE ASSESSEE WHICH HAS NOT BEEN RES PONDED BY THE ASSESSEE. LIKEWISE, WE NOTE THAT BEFORE THE ASS ESSING OFFICER ALSO, THE ASSESSEE HAS FAILED TO RESPOND TO THE STATUTO RY NOTICES AND CONSEQUENTLY THE ORDER WAS PASSED BY TAKING RESORT TO SECTIO N 144 OF THE ACT. THEREFORE, WHILE RESTORING THE MATTER TO THE FILE O F CIT(A) IN THE INTEREST OF NATURAL JUSTICE, WE DIRECT THE ASSESSEE T O COMPLY WITH THE DATE OF HEARING BEFORE THE CIT(A) WITHOUT ANY FURTHER DISOBED IENCE. FAILURE TO DO SO, WILL BE AT WN PERILS OF THE ASSESSEE. ACCORDINGL Y, THE ORDER OF THE CIT(A) IS SET ASIDE FOR DE NOVO ADJUDICATION BY THE CIT(A). 8. IN THE RESULT, APPEAL OF THE ASSESSEE IN IT(S)A NO.2/J AB/2016 FOR AY 2000-01 IS ALLOWED FOR STATISTICAL PURPOSES. IT(SS)A NO.3/JAB/2016 AY 2001-02 - ASSESSEES APPEAL 9. WE FIND THAT THE CAPTIONED APPEAL OF THE ASSESSEE IS IDENTICAL TO THE FACTS OF THE IT(SS)A NO.2/JAB/2016 FOR AY 2000-01(SUPRA). IN VIEW OF THE PARI MATERIA FACTS CONCERNING THE IDENTICAL ISSUE, OUR DECISION IN IT(SS)A NO.2/JAB/2016 SHALL APPLY MUTATIS MUTANDIS TO THE CAPTIONED APPEAL OF THE ASSESSEE FOR AY 2001-02. THE APPELLATE ORDER OF THE IT(SS)A NOS.2 & 3/J AB/2016 SHRI SHYAMSUNDER GUPTA VS. ITO ASST.YEARS 2000-01 2001-02 - 5 - CIT(A) IS ACCORDINGLY SET ASIDE AND RESTORED TO HIS FILE FOR DE NOVO ADJUDICATION AT HIS END. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IN IT(SS)A NO. 3/JAB/2016 FOR AY 2001-02 IS ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/11/2017 SD/- SD/- ( ) ( ) (PARTHA SARTHI CHAUDHURI) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER JABALPUR; DATED 13/ 11 /2017 .., .../ T.C. NAIR, SR. PS !#$ %$ / COPY OF THE ORDER FORWARDED TO : 1. ( / THE APPELLANT 2. )( / THE RESPONDENT. 3. 8 9 / CONCERNED CIT 4. 9 ( ) / THE CIT(A)-2, JABALPUR (MP) 5. : 8 , 8 , / DR, ITAT, JABALPUR 6. / GUARD FILE. / BY ORDER, ): //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, JABALPUR IT(SS)A NOS.2 & 3/J AB/2016 SHRI SHYAMSUNDER GUPTA VS. ITO ASST.YEARS 2000-01 2001-02 - 6 - 1. DATE OF DICTATION .. 13.11.17 (DICTATION-PAD 8-PAGES A TTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTA TING MEMBER 13.11.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P. S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTA TING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./ P.S.13.11.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK13.11.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRA R FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER