SHRI ASHOK KUMAR JAISWAL, Varanasi V. ACIT, Varanasi

MA 51/ALLD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1821 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 21-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K TRIPATHI
• Keywords: Corroborative evidences; TDS; Set aside
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VARANASI CIRCUIT BENCH , VARANASI BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.51/ALLD/2016 [IN ITA NO. 87/ALLD/2016] ASSESSMENT YEAR: 2009 - 10 SHRI ASHOK KUMAR JAISWA L C/O M/S JAISWAL MEDICAL IN FRONT OF KAURIA HOSPITAL LUXA, VARANASI V. ACIT CIRCLE 3 VARANASI T AN /PAN : ABIPJ6309A (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI PRAVEEN GODBOLE, C.A. RESPONDENT BY: SHRI A. K. TRIPATHI, CIT (DR) DATE OF HEARING: 08 05 201 9 DATE OF PRONOUNCEMENT: 07 0 6 201 9 O R D E R PER A. D. JAIN, V.P . : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE WITH A REQUEST TO RECALL THE ORDER OF THE TRIBUNAL, DATED 12/5/2016 IN ITA NO.87/LKW/2016. 2 . THE BRIEF FACTS OF THE CASE A RE THAT THE APPEAL IN THIS CASE WAS FIXED FOR HEARING ON 12/5/2016. THE ASSESSEE MOVED AN APPLICATION FOR ADJOURNMENT, WHICH WAS REJECTED AND THE APPEAL WAS DECIDED EX - PARTE QUA THE ASSESSEE. THE TRIBUNAL , WHILE DECIDING THE APPEAL OF THE ASSESSEE , ESTIM ATED THE NET PROFIT FROM LIQUOR BUSINESS AT 7% AS AGAINST 10% ESTIMATED BY THE A.O. , AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 3 . THE SUBMISSION OF THE LD. A.R. OF THE ASSESSEE BEFORE US WAS THAT THE APPLICATION DATED 3/5/2016 MOVED BY THE ASSESSEE FOR M.A. NO.51/ALLD/2016 PAGE 2 OF 4 ADJOURNMENT WAS REJECTED ALTHOUGH THERE WAS SUFFICIENT REASON FOR SEEKING ADJOURNMENT. THE LD. A.R. OF THE ASSESSEE I NVITED OUR ATTENTION TO THE REASONS MENTIONED IN THE APPLICATION FOR ADJOURNMENT, WHICH READ AS FOLLOWS: 'THE APPELLANT HAS FILED THE ABO VE MENTIONED APPEAL ON 28.4.2016, THE HEARING IN RESPECT OF WHICH IS FIXED FOR 12.5.2016. IN THIS CONNECTION, IT IS HUMBLY SUBMITTED THAT THE APPELLANT FILED APPLICATION FOR INSPECTION OF ASSESSMENT FILE AND APPEAL FILE BEFORE ID. ACIT , CIRCLE - 3, VARANSI A ND ID. CIT(A)'S OFFICE FOR THE PREPARATION OF SUBMISSION IN SUPPORT OF THE APPEAL. THE INSPECTION OF APPEAL FILE AND OBTAINING OF CERTIFIED COPIES MAY TAKE SOME TIME AS THE ID. CIT(A) IS STATED TO BE ON LEAVE AND LIKELY TO ASSUME HIS OFFICE AFTER 15.5.2016 .' 4 . THE LD. A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT THE COPIES OF THE APPLICATION FILED BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A) , SEEKING CERTIFIED COPIES OF THE RELEVANT PAPERS/INSPECTION WE RE ALSO ENCLOSED WITH THE ADJOURNMENT APPLICATION, AS EVIDENCE. THEREFORE, THE TRIBUNAL WAS NOT JUSTIFIED TO REJECT THE ADJOURNMENT APPLICATION AND DECIDE THE APPEAL EX - PARTE QUA THE ASSESSEE. 5 . IT WAS FURTHER SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT THE TRIBUNAL , WHILE DECID ING THE APPEAL OF THE ASSESSE E , DEALT WITH AN ISSUE , WHICH WAS NEITHER THE SUBJECT MATTER OF APPEAL NOR ANY SUCH GROUND WAS RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE LD. A.R. OF THE ASSESSEE ALSO INVITED OUR ATTENTION TO GROUND NO S .4 TO 6 RAISED BY THE ASSESSEE BEFORE THE TRIBU NAL, WHICH READ, AS BELOW: '4 THE LOWER AUTHORITIES HAVE FAILED TO APPRECIATE THAT THE ASSESSEE NEVER CARRIED ON LIQUOR BUSINESS IN INDIVIDUAL CAPACITY BUT IN CAPACITY OF AOP VIZ M/S SAVITRI DEVI BRIJESH KUMAR & OTHERS AND ACCORDINGLY INCOME FROM LIQUOR BU SINESS WAS SHOWN AND TCS WAS CLAIMED IN THE INCOME TAX RETURN FILED FOR THE A.Y. 2009 - 10 THE AOP M/S SAVITRI DEVI BRIJESH KUMAR AND OTHERS. ONCE THE INCOME WAS DECLARED BY THE AOP, THE SAME INCOME CANNOT BE M.A. NO.51/ALLD/2016 PAGE 3 OF 4 TAXED AGAIN IN THE HAND OF THE MEMBER OF AOP I.E . ASSESSEE APPELLANT. 5 THE CIT(A) HAS ERRED IN TOTALLY RELYING UPON THE FINDING OF AO AND DID NOT MAKE INDEPENDENT ENQUIRIES/VERIFICATION IN RESPECT OF LATEST REVISED 26AS FILED BEFORE HIM WHEREIN THE DEDUCTORS , M/S SARAYA DISTILLERY AND HERITAGE BREWERIE S (P) LTD. REVISED THEIR TDS RETURNS AND ENTRIES REGARDING TCS AND PURCHASES NO LONGER EXISTED IN 26AS OF THE ASSESSEE WHICH WAS THE BASIS OF OPENING OF THE CASE U/S 148 OF THE ACT. 6 THE LOWER AUTHORITIES HAVE ERRED IN ASSUMING THAT LIQUOR BUSINESS WAS CA RRIED ON BY THE ASSESSEE WHEREAS THE LIQUOR BUSINESS WAS IN FACT CARRIED ON BY THE AOP , M/S SAVITTRI DEVI BRIJESH KUMAR & OTHERS. IN FACT , NO BUSINESS OF LIQUOR WAS CARRIED ON BY THE ASSESSEE AT ANY POINT OF TIME. A LL THE PURCHASES AND TCS BELONGED TO SAID AOP.' 6 . REFERRING TO THE AFORESAID GROUNDS, THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE FINDING OF THE TRIBUNAL THAT THERE WERE PURCHASES AND SALES BY THE ASSESSEE IS NOT CORRECT , AS THE PURCHASE S PERTAIN TO M/S SAVITRI DEVI BRIJESH KUMAR AND OTHERS , AN D NOT TO THE ASSESSEE . 7 . THE LD. A.R. OF THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THE KOLKATA BENCH OF THE TRIBUNAL (THIRD MEMBER) IN PARTHA MITRA VS. INCOME - TAX OFFICER, WARD - 38 (3) 75 TAXMANN.COM 118, WHEREIN IT WAS HELD THAT THE ORDER OF THE T RIBUNAL DISMISSING THE APPEAL OF THE ASSESSEE IN DEFAULT ON ACCOUNT OF ABSENCE OF APPELLANT ON THE DATE OF HEARING , IS TO BE SET ASIDE AND THE MATTER IS TO BE RESTORED TO THE TRIBUNAL TO BE HEARD ON MERITS. IN THIS VIEW OF THE MATTER , THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL, WITHOUT PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND ALSO DECIDING AN ISSUE WHICH WAS NEITHER THE SUBJECT MATTER OF APPEAL NOR ANY SUCH GROUND WAS RAISED BY THE ASSESSEE BEFORE THE TRIBU NAL , NEEDS TO BE RECALLED AND THE APPEAL MAY BE FIXED FOR FRESH HEARING. M.A. NO.51/ALLD/2016 PAGE 4 OF 4 8 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL DATED 12/5/2016. 9 . HEARD. WE FIND FORCE IN THE SUBMISSION S OF THE LD. A.R. OF THE ASSESSEE . THE TRI BUNAL HAD REJECTED THE ADJOURNMENT APPLICATION MOVED BY THE ASSESSEE WITHOUT CONSIDERING THE PLAUSIBLE REASON FOR SEEKING ADJOURNMENT , WITH SUPPORTING EVIDENCE . WE ALSO FIND THAT THE TRIBUNAL HAD NOT DISPOSED OF THE SPECIFIC GROUNDS RAISED BY THE ASSESSE E AND DECIDED THE APPEAL WITHOUT PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE . THEREFORE, THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL DATED 12/5/2016. IN THIS VIEW OF THE MATTER, WE RECALL THE ORDER OF THE TRIBUNAL D ATED 12/5/2016 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING IN DUE COURSE. 10 . IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(4) OF THE ITAT RULES, 1963, BY PUTTING ON NOTICE BOAR D ON ... SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 07 /0 6 / 201 9 JJ: 2205 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR