L.A.Developers, Bhubaneswar V. DCIT, Corporate Circle-1(1), Bhubaneswar

ITSSA 98/CTK/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3753 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAAD KIDWAI
• Keywords: Opportunity of being heard
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM IT (SS) A NO . 98 /CTK/201 7 ( / ASSESSMENT YEAR : 20 08 - 2009 ) M/S L.A. DEVELOPERS, HIG - 47,2 ND FLOOR, JAYADEV VIHAR BHUBANESWAR VS. DCIT, CIRCLE - 1(1), BHUBANESWAR ./ ./ PAN/GIR NO. : A A CFL 6157 D ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : NONE /REVENUE BY : SH RI SAAD KIDWAI , DR / DATE OF HEARING : 1 5 / 0 5 /201 8 / DATE OF PRONOUNCEMENT 16 / 05 /201 8 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(A) - 1 , BHUBANESWAR, DATED 21.07.2017 , PASSED IN I.T.APPEAL NO. 0091 / 1 6 - 17 , U/S. 263/147/153A/143(3)/250 OF THE I.T.ACT FOR THE ASSESSMENT YEAR 20 08 - 20 09 . 2. THE SUBSTANTIVE GROUND RAISED BY THE ASSESSEE THAT THE CIT(A) HAS ERRED IN NOT GIVING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. 3. AT THE TIME OF HEARING, N ONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HEARING. HOWEVER, AN ADJOURNMENT PETITION HAS BEEN FILED BY THE ASSESSEE STATING THAT LD. AR OF THE ASSESSEE IS OUT OF STATION, WHICH IS IN OUR OPINION, IS NOT A PLAUSIBLE ONE, AND THE SAME IS REJECTED AND THE BENCH PROCEEDED TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND ON THE SUBMISSIONS OF LD. DR. IT (SS) A NO. 98 /201 7 2 4 . BRIEF FACTS OF THE CASE ARE THAT THERE WAS A SEARCH AND SEI ZURE OPERATION CONDUCTED ON 15.11.2007 U/S.132 OF THE ACT. THEREAFTER THE AO PASSED AN ORDER U/S.153A/143(3) DETERMINING TOTAL INCOME AT RS.64,53,196/ - . THE ASSESSMENT WAS SUBSEQUENTLY REOPENED U/S.147 OF THE ACT AND THE REASSESSMENT WAS COMPLETED ON 30.0 3.2013 WITH TOTAL INCOME OF RS.65,89,370/ - . SUBSEQUENTLY, THE LD. CIT, BHUBANESWAR DIRECTED THE AO TO MAKE FRESH ASSESSMENT REFERRING TO CERTAIN POINTS IN REVISION ORDER U/S.263 OF THE ACT. THEREAFTER THE AO COMPLETED THE ASSESSMENT MAKING ADDITION OF RS.9 6,88,195/ - ON ACCOUNT OF DISCREPANCY BETWEEN THE VALUE OF CURRENT ASSETS AND CURRENT LIABILITIES AND PASSED ORDER U/S.263/147/153A/143(3) OF THE ACT, DATED 31.03.2016. 5 . ON APPEAL, THE CIT(A) HAVING CONSIDERED THE SUBMISSIONS AND FINDINGS OF AO AND THE G ROUNDS RAISED BY THE ASSESSEE, FOUND THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN SUPPORT OF ITS CONTENTION RAISED IN THE GROUNDS AND LD. CIT(A) HAS CONFIRMED THE ADDITION BY THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE. 6 . AGGRIEVED BY THE ORDER O F CIT(A), THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . NONE APPEARED ON BEHALF OF THE ASSESSEE, WHEREAS LD.DR RELIED ON THE ORDER OF LOWER AUTHORITIES AND SUBMITTED THAT THE ASSESSEE WAS DELIBERATELY NOT FURNISHED THE DETAILS BEFORE THE AUTHORITIES BELOW AND THEREFORE, THE APPEAL OF THE ASSESSEE HAS NO MERIT S AND LIABLE TO BE DISMISSED. IT (SS) A NO. 98 /201 7 3 8 . WE HAVE HEARD THE SUBMISSIONS OF LD.DR AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE CIT(A) ORDER WE FOUND THAT THE CIT(A) HAS POS T ED THE CASE ON 24.05.201 7, 13.06.2017 AND THEREAFTER ADJOURNMENT PETITION WAS FILED AND THE CASE WAS ADJOURNED TO 11.07.2017. EVEN ON THE DATE OF HEARING ON 11.07.2017 THERE IS NO COMPLIANCE ON THE PART OF THE ASSESSEE, THEREFORE, THE CIT(A) RELIED ON THE FACTS AND MATERIAL ON RE CORD AND HAS DISPOSED OFF APPEAL OF THE ASSESSEE. NOW, THE CONTENTION OF THE ASSESSEE BEFORE US THAT THE ASSESSEE COULD NOT GET REASONABLE OPPORTUNITY OF HEARING BEFORE THE CIT(A). WE FIND THAT THE ASSESSEE WAS PROVIDED ADEQUATE OPPORTUNITY OF HEARING BY T HE CIT(A) AND NOW BEFORE US THE ASSESSEE HAS RAISED GROUND OF NOT GIVING REASONABLE OPPORTUNITY OF BEING HEARD BEFORE THE CIT(A). WE CONSIDERING BOTH THE ENDS OF JUSTICE, ARE OF THE OPINION THAT THE ASSESSEE SHOULD NOT WASTE THE VALUABLE TIME OF THE DEPAR TMENT MENTIONING THAT THERE WAS NO OPPORTUNITY WAS PROVIDED AND ALSO K EEPING IN VIEW THE ABOVE BACK GROUND OF THE CASE AND THE PRAYER OF THE ASSESSEE , WE IN THE INTEREST OF RENDERING SUBSTANTIAL JUSTICE, PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE AND WE ARE OF ALSO CONSCIOUS THAT NO LOSS WILL BE CAUSED TO THE REVENUE IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE TO PRESENT ITS APPEAL BEFORE THE CIT(A). BUT, KEEPING IN VIEW THE CONDUCT OF THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A), WE DIRECT THE ASSESSEE TO DEPOSIT RS.10 , 000/ - (RUPEES TEN THOUSAND ONLY) BY WAY OF COST PAYABLE TO THE INCOME TAX DEPARTMENT WITHIN 30 DAYS FROM THE DATE RECEIPT OF THE ORDER. IT (SS) A NO. 98 /201 7 4 9 . ACCORDINGLY, W ITH THE ABOVE DIRECTION S , THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF CIT(A) AND DIRECT THE CIT(A) TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS MADE CLEAR THAT THE CIT(A) SHALL BE AT LIBERTY TO PASS ANY ORDER AS HE M AY DEEM FIT IN THE MATTER, IN CASE THE ASSESSEE FAILS TO COOPERATE WITH HIM ON THE DATES OF HEARING FIXED BY HIM. WE ORDER ACCORDINGLY. 10 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOU NCED IN THE OPEN COUR T ON 16 / 05 / 201 8 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 16 / 05 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - M/S L. A. DEVELOPERS, HIG - 47,2 ND FLOOR, JAYADEV VIHAR BHUBANESWAR 2. / THE RESPONDENT - DCIT, CIRCLE - 1(1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//