ANIL KUMAR DANGAYACH(HUF), Jaipur V. ITO, Jaipur

MA 115/JPR/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4986 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Assessee Lawyers: PRAVEEN KR SARASWAT
• Keywords: Opportunity of being heard; Question of law
• Section: 260A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOE FLAG ;KNO ] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LNL; DS LE{K BEFORE: SHRI VIKRAM SINGH YADAV, AM & SHRI LALIET KU MAR, JM M.A. NO. 115/JP/2016 (ARISING OUT OF ITA NO. 413/JP/2015 & 364/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 ANIL KUMAR DANGAYACH (HUF), D-49, HATHI BABU MARG, BANIPARK, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACHA 0340 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PRAVEEN KR. SARASWAT (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/10/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/10/2016 VKNS'K@ ORDER PER: LALIET KUMAR, J.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 06/07/2016 AGAINST THE ORDER OF THE ITAT, JAIPUR BEN CH, JAIPUR DATED 13/05/2016 PASSED IN ITA NO. 413 & 364/JP/2015 FOR A.Y. 2011-12 CLAIMING THAT THE ORDER MAY BE SUITABLY AMEND AND T HE CASE BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AND DECID E IN ACCORDANCE WITH THE HON'BLE HIGH COURTS ORDER. MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 2 2. IN THE PRESENT CASE, THE TRIBUNAL HAS DECIDED THE ISSUE ON MERIT AND HAS ESTIMATED THE INCOME OF THE ASSESSEE @ 15% O F THE UNVERIFIABLE AMOUNT RELYING UPON THE BINDING JUDGME NT OF THE COORDINATE BENCH IN ITA NO. 187/JP/2012 ANUJ KUMAR VARSHNEY VS. ITO. IT WAS POINTED OUT BY THE ASSESSEE THAT IN THE C ASE OF THE ASSESSEE IN THE CASE OF PREVIOUS YEARS NAMELY IN ITA NOS. 93 1/JP/2012, 56/JP/2013, 932/JP/2012 AND ITA NO. 57/JP/2013, THI S TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OF FICER WITH DIRECTION TO DECIDE THE MATTER IN ACCORDANCE WITH THE HON'BLE HIG H COURTS ORDER. IT IS ALSO SUBMITTED THAT THIS TRIBUNAL WHILE DECIDING T HE ITA NO. 413/JP/2015, IN WHICH THE PRESENT APPLICATION HAS BE EN FILED, HAS ERRED IN NOT RESTORING THE MATTER TO THE FILE OF THE ASSE SSING OFFICER WITH A DIRECTION TO APPLY THE ORDER OF THE HON'BLE HIGH CO URT IN THE CASE OF ANUJ KUMAR VARSHNEY (SUPRA). IT WAS SUBMITTED THAT S INCE THIS TRIBUNAL HAS NOT FOLLOWED THE EARLIER ORDERS IN THE CASE OF A SSESSEE HIMSELF, THEREFORE, ORDER PASSED BY THE TRIBUNAL IS NOT CORRE CT AND IS REQUIRED TO BE CORRECTED. 3. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ORDER PASSED BY THE HONBLE TRIBUNAL WAS ON ACCOUNT OF OBJECTION AND SUBMISSION MADE BY THE DR AT THE TIME OF HEARING WHEREBY IT WAS SUBMITTED THAT MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 3 INSTEAD OF REMANDING THE MATTER TO THE FILE OF THE ASSESSING OFFICER, IT SHOULD BE DECIDED ON MERIT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS AN ADMITTED CASE THAT THE APPEAL BEING ITA NO. 413/JP/2015 AND ALSO THE O THER APPEALS OF THE ASSESSEE, PRIOR THERETO WERE DECIDED ON THE BASI S OF THE BINDING JUDGMENT OF THE COORDINATE BENCH IN THE CASE OF ANU J KUMAR VARSHNEY VS. ITO (SUPRA) AND THE SAID APPEAL IS PENDING FOR ADJUDICATION BEFORE THE HON'BLE HIGH COURT OF RAJASTHAN. 4.1 IN OUR VIEW, THE RIGHT RECOURSE, IN THE MATTERS, WHICH ARE PENDING BEFORE THE HON'BLE HIGH COURT FOR ADJUDICATION ON T HE IDENTICAL QUESTIONS OF LAW IS SUCCINCTLY BEEN GIVEN IN SECTION 158A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), WHICH IS REPRODUCE D HEREIN BELOW:- 158A (1) NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT, WHERE AN ASSESSEE CLAIMS THAT ANY QUESTION OF LAW ARISING IN HIS CASE FOR AN ASSESSMENT YEAR WHICH IS PENDING BEFORE THE ASSESSING OFFICER OR ANY APPELLATE AUTHORITY (SUCH CASE BEING HEREAFTER IN THIS SECTION REFERRED TO AS THE RELEVANT CASE) IS IDENTICAL WITH A QUESTION OF LAW ARISING IN HIS CASE FOR ANOTHER ASSESSMENT YEAR WHICH IS PENDING BEFORE THE HIGH COURT ON A REFERENCE UNDER SECTION 256 OR BEFORE THE SUPREME COURT ON A REFERENCE UNDER SECTION 257 OR IN APPEAL UNDER SECTION 260A BEFORE THE HIGH COURT OR IN APPEAL UNDER SECTION 261 BEFORE THE SUPREME COURT (SUCH CASE BEING HEREAFTER IN THIS SECTION REFERRED TO AS THE OTHER MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 4 CASE), HE MAY FURNISH TO THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, A DECLARATION IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER, THAT IF THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, AGREES TO APPLY IN THE RELEVANT CASE THE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE, HE SHALL NOT RAISE SUCH QUESTION OF LAW IN THE RELEVANT CASE IN APPEAL BEFORE ANY APPELLATE AUTHORITY OR IN APPEAL BEFORE THE HIGH COURT UNDER SECTION 260A OR IN APPEAL BEFORE THE SUPREME COURT UNDER SECTION 261. (2) WHERE A DECLARATION UNDER SUB-SECTION (1) IS FURNISHED TO ANY APPELLATE AUTHORITY, THE APPELLATE AUTHORITY SHALL CALL FOR A REPORT FROM THE ASSESSING OFFICER ON THE CORRECTNESS OF THE CLAIM MADE BY THE ASSESSEE AND, WHERE THE ASSESSING OFFICER MAKES A REQUEST TO THE APPELLATE AUTHORITY TO GIVE HIM AN OPPORTUNITY OF BEING HEARD IN THE MATTER, THE APPELLATE AUTHORITY SHALL ALLOW HIM SUCH OPPORTUNITY. (3) THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, MAY, BY ORDER IN WRITING,-- (I) ADMIT THE CLAIM OF THE ASSESSEE IF HE OR IT IS SATISFIED THAT THE QUESTION OF LAW ARISING IN THE RELEVANT CASE IS IDENTICAL WITH THE QUESTION OF LAW IN THE OTHER CASE; OR (II) REJECT THE CLAIM IF HE OR IT IS NOT SO SATISFIED. (4) WHERE A CLAIM IS ADMITTED UNDER SUB-SECTION (3),- - (A) THE ASSESSING OFFICER OR, AS THE CASE MAY BE, THE APPELLATE AUTHORITY MAY MAKE AN ORDER DISPOSING OF THE RELEVANT CASE WITHOUT AWAITING THE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE; AND (B) THE ASSESSEE SHALL NOT BE ENTITLED TO RAISE, IN RELATION TO THE RELEVANT CASE, SUCH QUESTION MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 5 OF LAW IN APPEAL BEFORE ANY APPELLATE AUTHORITY OR IN APPEAL BEFORE THE HIGH COURT UNDER SECTION 260A OR THE SUPREME COURT UNDER SECTION 261. (5) WHEN THE DECISION ON THE QUESTION OF LAW IN THE OTHER CASE BECOMES FINAL, IT SHALL BE APPLIED TO THE RELEVANT CASE AND THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE, SHALL, IF NECESSARY, AMEND THE ORDER REFERRED TO IN CLAUSE (A) OF SUB-SECTION (4) CONFORMABLY TO SUCH DECISION. (6) AN ORDER UNDER SUB-SECTION (3) SHALL BE FINAL AND SHALL NOT BE CALLED IN QUESTION IN ANY PROCEEDING BY WAY OF APPEAL, REFERENCE OR REVISION UNDER THIS ACT. EXPLANATION IN THIS SECTION,-- (A) 'APPELLATE AUTHORITY' MEANS THE DEPUTY COMMISSIONER (APPEALS), THE COMMISSIONER (APPEALS) OR THE APPELLATE TRIBUNAL; (B) 'CASE', IN RELATION TO AN ASSESSEE, MEANS ANY PROCEEDING UNDER THIS ACT FOR THE ASSESSMENT OF THE TOTAL INCOME OF THE ASSESSEE OR FOR THE IMPOSITION OF ANY PENALTY OR FINE ON HIM. IN THE PRESENT CASE, THOUGH THE MATTER ON THE IDENT ICAL ISSUE IS PENDING FOR ADJUDICATION BEFORE THE HON'BLE HIGH COURT BUT THE ASSESSEE HAS NOT GIVEN A CERTIFICATION/ DECLARATION AND UNDERTAKING IN TERMS OF SECTION 158A OF THE ACT, THEREFORE, THIS TRIBUNAL WAS LEFT WIT H NO OTHER OPTION BUT TO DECIDE THE MATTER ON MERIT. MOREOVER, EVEN I N CASE OF CERTIFICATE/DECLARATION GIVEN BY THE ASSESSEE BEFO RE THE APPELLATE AUTHORITY, IN THAT CASE ALSO A REPORT IS REQUIRED T O BE CALLED FROM THE MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 6 ASSESSING OFFICER AND THEREAFTER THE TRIBUNAL OR THE APPELLATE AUTHORITY CAN RESTORE THE FILE TO THE ASSESSING OFFICER IN AC CORDANCE WITH THE PROCEDURE LAID DOWN U/S 158A OF THE ACT. SINCE, NO CERTIFICATE/DECLARATION HAS BEEN GIVEN BY THE ASSES SEE IN TERMS OF SECTION 158A OF THE ACT AND FURTHER THE CATEGORICAL SUBMISSION MADE BY THE DR IN THE PRESENT CASE, THE MATTER WAS HEARD AND DECIDED ON MERIT BY FOLLOWING THE BINDING EARLIER JUDGMENT OF THE COO RDINATE BENCH IN THE CASE OF ANUJ KUMAR VARSHNEY (SUPRA). IN THE LIG HT OF THE ABOVE, THIS MISC. APPLICATION IS DEVOID OF ANY MERIT AND IS ACC ORDINGLY DISMISSED. 5. IN THE RESULT, THIS M.A. IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 25/10/2016. SD/- SD/- FOE FLAG ;KNO YFYR DQEKJ (VIKRAM SINGH YADAV) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH OCTOBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI ANIL KUMAR DANGAYACH (HUF), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 3(2), JAIPUR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) MA 115/JP/2016_ ANIL KUMAR DANGAYACH (HUF) VS. ITO 7 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 115/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR