M/s. Dushasan Jena, Cuttack V. ACIT, Circle-1(2), Cuttack

MA 20/CTK/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5042 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K PATTNAIK

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, A M MISCELL ANEOUS APPLICATION NO. 20 / CTK /20 1 7 ( ARISING OUT OF ITA NO. 182 /CTK/201 5 ) ( / ASSESSMENT YEAR : 20 10 - 201 1 ) M/S DUSHASAN JENA, JOBRA(TALASAHI) PO - COLLEGE SQUARE, CUTTACK - 753003 VS. ACIT,CIRCLE - 1(2), CUTTACK ./ ./ PAN/GIR NO. : A AAF D 9502 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI P.K.PATTNAIK , AR /REVENUE BY : SHRI SUBHENDU DUTTA, DR / DATE OF HEARING : 19 /0 8 /2019 / DATE OF PRONOUNCEMENT : 20 /0 8 /2019 / O R D E R PER L.P.SAHU, A M TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE SEEKING RESTORATION OF THE ORDER OF TRIBUNAL DATED 03.07.2017 , PASSED IN ITA NO. 182 /CTK/201 5 FOR A.Y.20 10 - 201 1 . 2. WE HAVE HEAR D ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE ORDER OF THE TRIBUNAL . 3. LD. AR SUBMITTED THAT T HE ASSESSEE HAS CLAIMED EXPENDITURE ON THE BILLS AND VOUCHERS IN THE NAME OF M/S. BABA LINGARAJ ENTERPRISES, BHUBANESWAR. THE EXPENDITURES WERE FOR I) TRANSPORTATION & HIRE CHARGES, (II) OIL & LUBRICANTS (III) LOADING CHARGES AND (IV) SHIFTING CHARGES. THE M. A. NO. 20 /CTK/201 7 2 ASSESSING OFFICER DISALLOWED 35% OF THE EXPENDITURES CLAIMED BY THE ASSESSEE UNDER THE ABOVE HEADS AND MADE AN ADDITION OF RS.42,12,029/ - TO THE INCOM E OF THE ASSESSEE. THE CIT(A) RESTRICTED THE DISALLOWANCE TO RS.5,00,000/ - ON THE GROUND THAT THE NET PROFIT SHOWN BY THE ASSESSEE WAS MORE THAN 12% OF THE GROSS TURNOVER. AGAINST WHICH, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND THE APPEAL WAS FI XED FOR HEARING ON 3 .7.2017 FOR THE FIRST TIME. THE COUNSEL WHO WAS TO APPEAR BEFORE THE TRIBUNAL TO ARGUE THE CASE WAS OUT OF ORISSA ON THE SAID DATE. HOWEVER, THE TRIBUNAL DECIDED THE APPEAL OF THE ASSESSEE EX - PARTE ON THE GROUND OF NON - APPEARANCE FROM T HE SIDE OF THE ASSESSEE WITHOUT PROVIDING ANY OPPORTUNITY TO PUTFORTH ITS CLAIM AGAINST THE SUSTENANCE OF CONFIRMATION BY THE CIT(A). THEREFORE, LD. AR PRAYED FOR RESTORATION OF THE APPEAL TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER HEARING THE AS SESSEE. 4. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDER OF THE TRIBUNAL. 5 . AFTER HEARING THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY PERUSING OF THE TRIBUNAL ORDER, WE FIND THAT THE TRIBUNAL IN THE ORDER DATED 03.07.2017 HAS MENTIONED THAT THE ASS ESSEE DID NOT APPEAR BEFORE THE TRIBUNAL ON THE DATE OF HEARING EVEN NOTICE WAS SENT TO THE ASSESSEE BY SPEED POST. ACCORDINGLY, THE TRIBUNAL PROCEEDED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE CONSIDERING THE SUBMISSION OF LD.DR. FINALLY THE TRIBUNAL DISM ISSED THE APPEAL OF THE ASSESSEE. LD. AR BEFORE US SUBMITTED THAT FOR THE FIRST TIME THE APPEAL WAS FIXED FOR HEARING ON 03 . 0 7.2017 AND ON THE SAME DATE, THE AR OF THE ASSESSEE COULD NOT APPEAR DUE TO OUTSTATION. WE HAVE ALSO GONE THROUGH THE ORDER SHEET A ND M. A. NO. 20 /CTK/201 7 3 FOUND THAT THE APPEAL OF THE ASSESSEE WAS FIRST FIXED ON 16.03.2017 ON WHICH DATE THE BENCH DID NOT FUNCTION AND THE APPEAL WAS REFIXED ON 03.07.2017 ON WHICH DATE THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER. FROM THE ABOVE, WE FIND FORCE IN THE ARGUMENT OF THE LD. AR THAT THE ASSESSEE WAS NOT PROVIDED A NY OPPORTUNITY OF HEARING AND THE APPEAL OF THE ASSESSEE WAS DECIDED ON FIRST DATE OF HEARING. FURTHER WE FOUND THAT THE TRIBUNAL HAS PASSED THE ORDER WHILE DECIDING CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE. THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATION AGAINST THE ORDER DATED 03.07.2017, HOWEVER, THERE IS NO MISCELLANEOUS APPLICATION HAS BEEN FILED ON THE PART OF THE REVENUE , THEREFORE, THE ORDER PASSED BY THE TRIBUNAL WITH REGARD TO APPEAL OF TH E REVENUE HAS ATTAINED ITS FINALITY UPTO THE LEVEL OF TRIBUNAL . ACCORDINGLY , TO RENDER SUBSTANTIAL JUSTICE AND CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , WE ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND RESTORE THE ORDER DATED 03.07.2017 TO ITS ORIGINAL NUMBER ONLY TO THE EXTENT OF DECIDING APPEAL OF THE ASSESSEE I.E. ITA NO.182/CTK/2015. WE ORDER ACCORDINGLY. 6 . THE REGISTRY IS DIRECTED TO FIX THE APPEAL OF ASSESSEE I.E. ITA NO. 182 /CTK/2015 IN DUE COURSE . 7 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 20 / 08 / 201 9 . SD/ - ( C.M.GARG ) SD/ - ( L.P.SAHU ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 20 / 08 /2019 . . /PKM , S R.P.S. M. A. NO. 20 /CTK/201 7 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . M/S DUSHASAN JENA, JOBRA(T ALASAHI) PO - COLLEGE SQUARE, CUTTACK - 753003 2. / THE RESPONDENT - ACIT,CIRCLE - 1(2), CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FI LE. //TRUE COPY//