Pritam Singh Oberoi, Bareilly V. ITO, Lucknow

MA 12/LKW/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4940 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 17-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: SURENDRA KOHLI
• Keywords: Business income; Opportunity of being heard; Reasonable cause
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B-BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER M.A.NO.12(LUC.)/2010 (IN I.T.A.NO.416(LUC.)/2009) A.Y. : 2002-03 SHRI PRITAM SINGH OBEROI, VS. THE I.T.O., C/O M/S. NEW WAREHOUSE CARRIERS, RANGE II(3), LUCK NOW. SITE OFFICE: 297D,SALVATION ARMY ROAD, CIVIL LINES, BAREILLY. PAN AAHPO7013J (APPLICANT) (RESPONDENT) I.T.A.NO.416(LUC.)/2009 A.Y. : 2002-03 SHRI PRITAM SINGH OBEROI, VS. THE I.T.O., C/O M/S. NEW WAREHOUSE CARRIERS, WARD II(3), LUCKNO W. SITE OFFICE: 297D,SALVATION ARMY ROAD, CIVIL LINES, BAREILLY. PAN AAHPO7013J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURENDRA KOHLI,ADVOCATE RESPONDENT BY : SHRI ALOK MITRA, D.R. O R D E R PER N.K.SAINI, ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE IS ARISING OUT OF THE EX PARTE ORDER DATED 17.8.2009 PASSED IN I.T.A .NO.416(LUC.)/2009. IN 2 THIS MISCELLANEOUS APPLICATION DATED 20.3.2010, THE ASSESSEE CONTENDED AS UNDER : RESPECTFULLY, THE APPELLANT FILED A SECOND APPEAL BEFORE THE HON'BLE ITAT LUCKNOW BENCH LUCKNOW ON 22-7-2009. 2. THAT THE APPELLANT IS ASSESSED TO TAX WITHIN TH E JURISDICTION OF THE ITO RANGE II LUCKNOW AT PAN : AAHPO7013J AND RE SIDES AT 28, PARK ROAD LUCKNOW. HOWEVER, PRESENTLY THE BUSINESS ACTIVITIES ARE CARRIED OUT AT SITE OFFICE 297D SALVATION ARMY ROAD , CIVIL LINES, BAREILLY (UP.) MENTIONED IN FORM NO.36 BEFORE THIS HON'BLE COURT. 3. THAT THE COUNSEL OF THE APPELLANT MR. SURENDRA K OHLI ADVOCATE (TAX CONSULTANT) IS BASED AT LUCKNOW AND HIS OFFICE ADDRESS IS 58, HAZRATGANJ LUCKNOW. 4. THAT THE CASE WAS FIXED ON 17-8-2009 BEFORE THIS SMC BENCH AND NOTICE OF HEARING SERVED AT THE BAREILLY ADDRES S FIXING THE CASE ON 17-8-2009. 5. THAT THERE WAS A TRAGEDY IN OUR FAMILY ON ACCO UNT OF SUDDEN AND PREMATURE DEATH OF MY FIRST COUSIN MR. INDERJEE T OBEROI S/O SHRI HARDIT SINGH OBEROI, SUKHJEEVAN SOCIETY, KARVI, CHO WK, NAGPUR. AS A MATTER OF FACT I WAS BROUGHT UP AND EDUCATED UNDE R THE GUARDIANSHIP OF MY REAL UNCLE SHRI HARDIT SINGH OBEROI AFTER THE DEATH OF MY FATHER LATE SHRI BHAGWANT SINGH AT AN EARLY AGE WHEN I WAS IN MY EARLY TEEN AGE AND MY UNCLE BECAME MY NATURAL GUARDIAN. THAT W E HAVE BEEN A VERY CLOSE KNIT FAMILY AND I WAS IN A COMPLETE STAT E OF SHOCK ON ACCOUNT OF THE SUDDEN DEATH AND HAD TO LEAVE BAREIL LY FOR THE LAST RITES AND DEATH CEREMONY AT NAGPUR FROM 13-8-2009 TO 18-8 -2009. AN AFFIDAVIT IN CONFIRMATION DULY SWORN IN BY ME IS EN CLOSED. 6. UNDER THE COMPELLING CIRCUMSTANCES, I INSTRUCTE D MY WIFE TO SEND THE ABOVE NOTICE IMMEDIATELY TO OUR COUNSEL MR . SURENDRA KOHLI, ADVOCATE FOR CONDUCTING THE CASE PRIOR TO LEAVING F OR NAGPUR VIA NEW DELHI. SUBSEQUENTLY MY WIFE SENT THE ORIGINAL NOTIC E TO OUR COUNSEL ON 13-8-2009 BY COURIER. 7. TO MY BAD LUCK THE SAID NOTICE WAS SERVED ON MY COUNSEL ON MONDAY, 17TH DAY OF AUGUST, 2009 AT 1:20 P.M. WHILE THE HEARING WAS FIXED ON THE SAME DATE AT 10:30 AM IN SMC BENCH WHI CH WAS FINALIZED EX-PARTE. DETAILED ENQUIRIES REVEALED THA T THE DELAY OCCURRED 3 DUE TO FOLLOWING CLOSED HOLIDAYS: FRIDAY 14.8.2009 HOLIDAY ON ACCOUNT OF JANMASHTMI SATURDAY 15.8.2009 HOLIDAY ON ACCOUNT OF INDEPENDEN CE DAY. SUNDAY 16.8.2009 CLOSED HOLIDAY. 8. SUBSEQUENTLY MY COUNSEL INFORMED AFTER MY ARRIV AL AT BAREILLY THAT IMMEDIATELY ON RECEIPT OF NOTICE THE COUNSEL REACHED THE IT AT TO BE INFORMED THAT DECISION HAS BEEN TAKEN EX-PARTE AND ADVISED FOR STEPS TO BE TAKEN IN THE M ATTER AND HENCE THIS MISCELLANEOUS PETITION FOR SYMPATHETIC C ONSIDERATION AND RESTORATION OF APPEAL PETITION. 9. THAT THE APPELLANT IS A LAW ABIDING CITIZEN AND IT IS JUST UNFORTUNATE THAT ON ACCOUNT OF TRAGIC AND COMPELLIN G CIRCUMSTANCES, THE APPELLANT WAS PREVENTED FROM A R EASONABLE AND SUFFICIENT CAUSE FOR MAKING AN APPEARANCE ON TH E DATE OF HEARING AND PLEAD MERCY. 10. THAT THE REQUISITE FEES OF RS.500/- HAS BEEN D EPOSITED VIDE CHALLAN NO.13 DATED 20-3-2010 AND PROOF FOR THE SAME IS ENCLOSED. HENCE PRAYED THAT IN THE INTEREST OF EQUITY, JUSTIC E AND GOOD CONSCIENCE THIS MISCELLANEOUS APPLICATION FOR RESTO RATION MAY KINDLY BE ADMITTED AND APPEAL RESTORED FOR DECISION AFRESH FOR WHICH THE APPELLANT SHALL BE HIGHLY OBLIGED AND GRA TEFUL. 2. IN SUPPORT OF THE APPLICATION, THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT DATED 27.2.2010 STATING THEREIN AS UNDER : BEFORE THE INCOME TAX APPELLATE TRIBUNAL, (SMC) LUCKNOW BENCH, LUCKNOW SUB: AFFIDAVIT OF PRITAM SINGH OBEROI, LUCKNOW (IN DIVIDUAL) RELATING TO A.Y. 2002-03 (PAN: AAHPO7013J) I PRITAM SINGH OBEROI S/O LATE SHRI BHAGWANT SINGH C/O NEW WAREHOUSE CARRIERS, SITE OFFICE, 297D SALVATION ARM Y ROAD, CIVIL LINES, BAREILLY, DO HEREBY SOLEMNLY AFFIRM AND DECL ARE AS UNDER: 1 THAT THE DEPONENT WAS BROUGHT UP UNDER THE NATURA L GUARDIANSHIP OF MY UNCLE MR. HARDIT SINGH OBEROI AF TER THE 4 PREMATURE DEATH OF MY FATHER. 2. THAT MY FIRST COUSIN MR.LNDERJEET OBEROI S/O OF MY UNCLE SHRI HARDIT SINGH OBEROI SUDDENLY EXPIRED, WHOSE DEATH C EREMONY WAS PERFORMED ON SUNDAY, 16 TH AUGUST 2009 AT NAGPUR. 3. THAT I WAS OUT OF STATION TO NAGPUR FROM 13-8-20 09 TO 18-8-2009 IN CONNECTION WITH THE TRAGEDY IN OUR FA MILY. 4. THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO MY KNOWLEDGE AND BELIEF. DATED 27 FEBRUARY, 2010 SD. DEPONENT 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATIO N AND REQUESTED TO RECALL THE EX PARTE ORDER BY SATING THAT THE ASSESSEE WAS PRE VENTED BY REASONABLE CAUSE FOR HIS NON-APPEARANCE ON 17.8.2009. 4. IN HIS RIVAL SUBMISSIONS, THE LD.D.R., ALTHOUGH OPPOSED THE RECALLING OF EX PARTE ORDER, BUT COULD NOT CONTROVERT THE AFORES AID CONTENTION OF THE ASSESSEE. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, WE FIND THAT THE EXPLANATION OF THE ASSESSEE IS PLAUSIBLE AND ARE O F THE OPINION THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE TO PLEAD HIS CASE ON 17.8.2009. WE,THEREFORE, RECALL THE EX PARTE ORDER DATED 17.8. 2009 AND SINCE BOTH THE PARTIES AGREED TO ARGUE THE APPEAL ON MERIT, THE A PPEAL IS FIXED FOR HEARING AND AFTER HEARING THE PARTIES, WE PROCEED TO DECI DE THE SAME. 5 I.T.A.NO.416(LUC.)/2010 6. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER DATED 20.8.2007 OF THE LD.CIT(A)-I, LUCKNOW. 7. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS : 1. THAT THE LEARNED CIT(A) ERRED IN LAW AS WELL AS ON FACTS IN PASSING THE APPELLATE ORDER DATED 28-8-2007 EX-PART E WITHOUT GIVING THE APPELLANT REASONABLE AND SUFFICIENT OPPO RTUNITY AND DISMISSED THE APPEAL. 2. THAT THE LEARNED CIT(A) ERRED THAT CASE WAS FIXE D 8 TIMES BY ISSUE OF NOTICE RIGHT FROM 29-9-2006 TO 19-7-2007 A S ONLY ONE SINGLE NOTICE FIXING APPEAL FOR 27-9-2006 WAS SERVE D ON THE ASSESSEE'S COUNSEL WHO PERSONALLY APPEARED ON 27-9- 2006 AND SOUGHT ADJOURNMENT AND THE APPEAL WAS FINALLY FIXED FOR 09-1- 2007 ON WHICH DATE THE CASE WAS NOT TAKEN UP SINCE ONLY HIGH DEMAND CASES INVOLVING DISPUTED TAX EXCEEDING RUPEE S ONE LAC WERE ONLY BEING TAKEN FOR HEARING. 3. THAT THE APPELLANT WAS FULLY PREPARED WITH THE W RITTEN SUBMISSIONS / DOCUMENTARY EVIDENCES TO ARGUE THE AP PEAL ON 09-1-2007. 4. THAT NO NOTICE SUBSEQUENT TO 09-1-2007 WAS EVER SERVED WHILE THE AUTHORIZED COUNSEL WAS ALWAYS AVAILABLE IN THE PREMISES ITSELF AND THE POWER OF ATTORNEY WAS AVAILABLE ON R ECORD. 5. THAT THE OBSERVATIONS ' ..... CASE WAS FIXED 8 T IMES BY ISSUE OF NOTICE RIGHT FROM 27-9-2006 TO 19-7-2007 AND ALSO ADJOURNMENTS WERE GIVEN BUT THERE HAS BEEN NO ATTEN DANCE ... IS DENIED AS COMPLIANCE WAS MADE ON 27-9-2006, 11-1 0-2006, 17-11-2006 AND 09-1-2007 WHEN CASE WAS NOT TAKEN UP FOR THE REASONS MENTIONED IN GROUND NO 2 ABOVE. 6. THAT EX-PARTE APPELLATE ORDER SERVED ON 26-5-200 9 AFTER THE APPELLANT CAME TO KNOW FOR THE FIRST TIME FROM THE AO AND APPLIED FOR THE SAME. 7. THAT EVEN ON MERITS THE LEARNED CIT(A) FAILED TO APPRECIATE THAT IN THE ABSENCE OF OWNERSHIP RIGHT IN THE PREMI SES, HOW 6 COME INCOME ASSESSED AS RENTAL RECEIPT UNDER INCOM E UNDER THE HEAD HOUSE PROPERTY'. 8. THAT THE APPELLATE ORDER DESERVED TO BE SET-ASID E OR SUCH OTHER RELIEF BE GRANTED AS MAY BE DEEMED FIT AND APPROPRI ATE. 8. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE A SSESSEE DID NOT FILE HIS RETURN OF INCOME. THE INCOME WAS EARNED AS PARTNER IN THE FIRM M/S. NEW WAREHOUSE CARRIERS, LUCKNOW. THE AO ISSUED THE NOTI CE UNDER SECTION 148 OF THE INCOME-TAX ACT,1961. IN RESPONSE TO THAT T HE ASSESSEE FILED THE RETURN OF INCOME ON 19.5.2005 DECLARING TOTAL INCOME OF R S.1,54,016.HOWEVER,THE AO FRAMED THE ASSESSMENT AT RS.2,41,515. 9. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A ) AND CLAIMED THAT THE RENTAL INCOME AMOUNTING TO RS.1,25,000 WAS TREATED AS INCOME FROM HOUSE PROPERTY, WHICH WAS CLAIMED BY THE ASSESSEE AS BUSINESS INCOME AND AFTER DEDUCTING VARIOUS EXPENSES, NET INCOME WAS S HOWN AT RS.15,478. THE CLAIM OF THE ASSESSEE BEFORE THE LD.CIT(A) WAS THAT HE COULD NOT OBTAIN THE NON TDS CERTIFICATE AND HIS WRITTEN SUBMISSIONS WER E NOT CONSIDERED BY THE AO. HOWEVER, THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY STAINING THAT THE CASE WAS FIXED EIGHT TIMES BY THE ISSUE OF NOTICES RIGHT FROM 27.9.2006 TO 19.7.2007 AND ALSO ADJOURNMENTS WERE G IVEN, BUT THERE HAS BEEN NO ATTENDANCE. 10. NOW, THE ASSESSEE IS IN APPEAL. 11. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT CONSIDERING THE 7 MATERIAL ON RECORD AND GIVING OPPORTUNITY OF BEING HEARD. IT WAS SUBMITTED THAT THE ASSESSEE COMPLIED WITH THE NOTICES ISSUED FOR HEARING, BUT THE CASE WAS NOT TAKEN FOR HEARING BY THE LD.CIT(A). IT WAS FURTHER SUBMITTED THAT THE LD.CIT(A) SHOULD HAVE DECIDED THE APPEAL OF THE ASS ESSEE ON MERIT, INSTEAD OF DISMISSING IT IN LIMINE. 12. THE LD.D.R., IN HIS RIVAL SUBMISSIONS, SUPPORTE D THE ORDER OF THE AO AND SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEA R BEFORE THE LD.CIT(A), THEREFORE, THE APPEAL WAS RIGHTLY DISMISSED FOR NON -COMPLIANCE. 13. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E INSTANT CASE, ALTHOUGH THE LD. CIT(A) HAS STATED THAT THE CASE WAS FIXED EIGHT TIMES FOR HEARING, BUT NOWHERE IT IS STATED THAT THE ASSESSEE DID NOT COMP LY THE NOTICES. IT IS ALSO NOTICED THAT THE LD.CIT(A) HAD NOT DECIDED THE APPE AL ON MERIT, BUT DISMISSED THE SAME IN LIMINE. WE, THEREFORE, DEEM I T APPROPRIATE TO SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMAND THE CASE TO BE DECIDED ON MERIT IN ACCORDANCE WITH LAW, AFTER PROVIDING DUE AND REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO CO-OPERATE AND NOT TO SEEK UNWARRANTED AND UNREASONABLE ADJOURNMEN TS. 14. IN THE RESULT, THE MISCELLANEOUS APPLICATION I S ALLOWED AND THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.9.201 0. SD. SD. (H.L.KARWA) (N.K.SAINI) VICE PRESIDENT ACCOUNTANT MEMBER SEPTEMBER 17TH ,2010. 8 COPY TO THE : 1. ASSESSEE 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.