Abdulkader Inayathusein Bohari, Dhule V. Income-tax Officer,Ward-1, Dhule

MA 15/PUN/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0573 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT HALDAR
• Section: 271(1)(c); 44AD; 143(3); 133A

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / MA NO.14/PUN/2019 (ARISING OUT OF ITA NO.1212/PUN/2017) / ASSESSMENT YEAR : 2013-14 MURTUZA INAYATHUSEIN BOHARI, PROP. RAJ ELECTRICALS, AMBA BAZAR, TAL. SHIRPUR, DHULE-425405. PAN : ABAPB5543L ....... / APPELLANT / V/S. ITO, WARD-1, DHULE. / RESPONDENT . / MA NO.15/PUN/2019 (ARISING OUT OF ITA NO.1214/PUN/2017) / ASSESSMENT YEAR : 2013-14 ABDULKADER INAYATHUSEIN BOHARI, PROP. BURHANI TRADERS, AMBA BAZAR, TAL. SHIRPUR, DHULE-425405. PAN : ABAPB5561C ....... / APPELLANT / V/S. ITO, WARD-1, DHULE. / RESPONDENT ASSESSEE BY : SHRI PRATEEK JHA REVENUE BY : SHRI ABHIJIT HALDAR / DATE OF HEARING : 01.03.2019 / DATE OF PRONOUNCEMENT : 01.03.2019 / ORDER PER D. KARUNAKARA RAO, AM: BOTH THE CAPTIONED MISCELLANEOUS APPLICATIONS ARISE FROM THE TWO DIFFERENT ASSESSEES APPEAL IN ITA NO.1212/PUN/2017 VIDE ORDER DATED 22.06.2018 AND ITA NO.1214/PUN/2017 VIDE ORDER DATED 20.06.2018 FOR THE ASSESSMENT YEAR 2013-14 RESPECTIVELY. MA NOS.14 & 15/PUN/2019 - 2 - 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEES SUBMITTED THAT BOTH THE APPEALS WERE DISMISSED AND THE SAME ARE EX-PARTE ORDERS. REFERRING TO THE FAILURE TO MAKE APPEARANCE BEFORE THE TRIBUNAL ON THE SPECIFIED DATE OF HEARING, LD. COUNSEL BROUGHT MY ATTENTION TO THE AFFIDAVIT FILED BEFORE ME. FOR THE SAKE OF COMPLETENESS, THE RELEVANT CONTENTS OF AFFIDAVIT FILED IN MA NO.14/PUN/2019 ARE EXTRACTED HEREUNDER :- I SAY THAT, THE NOTICE OF HEARING STATED TO BE POSTED AT MY ADDRESS WAS NOT PROPERLY SERVED ON ME AND I WAS NOT AWARE OF THE DATE OF HEARING SPECIFIED IN THE SAID NOTICE. MY APPEAL WAS DECIDED, VIDE ORDER PRONOUNCED ON 22.06.2018, WITHOUT HEARING ME/MY REPRESENTATIVE. I SAY THAT, I LIVE AND DO BUSINESS AT A SMALL PLACE NAMED SHIRPUR. MY BUSINESS IS SMALL. THERE IS NO INCOME TAX OFFICE AT THIS PLACE. I DO NOT HAVE REGULAR SERVICES OF ANY CHARTERED ACCOUNTANT OF ADVOCATE FOR TAKING ADVICES IN INCOME TAX MATTER. THE NEAREST PLACE WHERE AN INCOME TAX OFFICE IS LOCATED IS DHULE, WHICH IS ABOUT 50 KILOMETERS AWAY FROM SHIRPUR. IT IS NOT POSSIBLE TO ARRANGE FOR A QUALIFIED ADVOCATE OR CHARTERED ACCOUNTANT TO HANDLE A TRIBUNAL MATTER AT A VERY SHORT NOTICE. I SAY THAT, THE ASSESSMENT IN MY CASE FOR A Y 2013-14 WAS COMPLETED UNDER SECTION 143(3) ON 11.03.2016, BY THE ITO WARD-1, DHULE, ADDITION OF RS.5,00,000/- WAS MADE ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY ACTION. FURTHER ADDITION OF RS.1,20,000/- WAS MADE ON ESTIMATE BASIS IN RESPECT OF HOUSE HOLD EXPENSES. PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED. I SAY THAT, I AM THE PROPRIETOR OF RAJ ELECTRICALS. I DERIVE INCOME FROM TRADING IN ELECTRICAL GOODS. A SURVEY ACTION UNDER SECTION 133A WAS CONDUCTED IN MY BUSINESS PREMISES ON 21.11.2012. MY STATEMENT WAS RECOVERED UNDER SECTION 133A(1) OF THE I T ACT. I SAY THAT, I FILED RETURN OF INCOME ELECTRONICALLY DECLARING TOTAL INCOME OF RS.4,86,290/-. TOTAL INCOME INCLUDED AN AMOUNT OF RS.2,10,000/- AS INCOME FROM HOUSE PROPERTY, PROFIT OR RS.1,04,671/- FROM TRADING BUSINESS UNDER SECTION 44AD AND PROFIT OF RS.1,68,250/- FROM TRANSPORT BUSINESS UNDER SECTION 44AE. I SAY THAT, I FILED APPEAL BEFORE THE CIT(A)-1, NASHIK, CONTESTING BOTH THE ADDITIONS. I SUBMITTED THAT ADDITION OF RS.5,00,000/- WAS MADE MERELY ON THE BASIS OF STATEMENT RECORDED DURING SURVEY AND WITHOUT BRINING ANY CORROBORATIVE MATERIAL ON RECORD TO PROVE THAT I HAD ACTUALLY EARNED UNDISCLOSED INCOME TO THE EXTENT OF RS.5,00,000/- WAS NOT JUSTIFIED. I SAY THAT, ADDITION OF RS.1,20,000/- WAS MADE PURELY ON ESTIMATE AND PRESUMPTION AND WAS NOT JUSTIFIED. I SAY THAT, NON APPEARANCE BEFORE THE HONBLE ITAT WAS NOT INTENTIONAL OR DELIBERATE. IT ACTUALLY HAPPENED WITHOUT MY KNOWLEDGE. I EARNESTLY PRAY THAT THE EX-PARTE ORDER PRONOUNCED ON 22.06.2018 BE RECALLED AND MY APPEAL BE RESORTED. I SHALL EXTEND FULL CO-OPERATION TO THE HONBLE BENCH OF THE ITAT TO HEAR THIS APPEAL AND DECIDE THE SAME ON MERITS. 3. SIMILAR REASON FILED IN MA NO.15/PUN/2019 BY THE ASSESSEE FOR NON- APPEARANCE. 4. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEES DO NOT HAVE A REGULAR CHARTERED ACCOUNTANT OR ADVOCATE FOR GIVING ADVICE TO THEM. FURTHER, IT IS ALSO STATED THAT THE NON-APPEARANCE BEFORE THE TRIBUNAL WAS NOT INTENTIONAL MA NOS.14 & 15/PUN/2019 - 3 - OR DELIBERATE. HE ALSO MENTIONED THAT NOTICE ISSUED BY THE TRIBUNAL REGARDING THE DATE OF HEARING WAS NOT COMMUNICATED TO THE ASSESSEES. 5. CONSIDERING THE ABOVE, I FIND THERE WAS SUFFICIENT REASON FOR NON- APPEARANCE BY THE ASSESSEES ON THE DATE OF HEARING BEFORE ME. I FIND FORCE IN THE MISCELLANEOUS APPLICATIONS SINCE THE APPEALS HAVE BEEN DISMISSED IN LIMINE , ADMITTEDLY DUE TO NON-APPEARANCE OF THE ASSESSEES. THEREFORE, I AM OF THE OPINION THE APPEALS UNDER CONSIDERATION SHOULD BE RECALLED FOR FRESH HEARING. THE REGISTRY IS DIRECTED TO FIX BOTH THE APPEALS FOR HEARING IN DUE COURSE AFTER ISSUING THE NOTICE OF HEARING TO THE PARTIES ACCORDINGLY. THE ASSESSEES ARE DIRECTED NOT TO SEEK FRIVOLOUS ADJOURNMENT AND ADOPT ALL REASONABLE STEPS TO GET THE APPEALS FINALIZED AT AN EARLY DATE. 6. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS OF THE RESPECTIVE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 01 ST DAY OF MARCH, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 01 ST MARCH, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, NASHIK; 4. THE PR.CIT-1, NASHIK; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE