Mohammed Farook Tyab, Cuttack V. ITO, Cuttack

MA 8/CTK/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8622 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 27-04-2012
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEEDR
• Assessee Lawyers: B K MAHAPATRAAR
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM MISC.APPLICATION NO.08/CTK/2012 AND ITA NO. 26/CTK/2010 (ASSESSMENT YEAR 2006 - 07) MOHAMMED FAROOK TAYAB, MASTAN ROAD, BUXIBAZAR, C UTTACK PAN: AERPM 5935 R VERSUS INCOME - TAX OFFICER, WARD 2(3),CUTTACK. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI B.K.MAHAPATRA,AR FOR THE RESPONDENT SHRI A.BHATTACHARJEE,DR DATE OF HEARING : 22.06.2012 DATE OF PRONOUNCEMENT : 29.06.2012 ORDER SHRI K.K.GUPTA, AM : VIDE THE MISC.APPLICATION, THE ASSESSEE SEEKS RECALLING OF THE ORDER DT. 11.04.2012 IN ITA NO.26/CTK/2011 PASSED BY THIS TRIBUNAL. THE TRIBUNAL HAD DISMISSED THE ASSESSEES APPEAL FOR WANT OF PROSECUTION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FACTS OF THE ASSESSEES RETURN OF INCOME BY THE ASSESSING OFFICER HAVE NOT BEEN APPRECIATED IN THE TRUE SPIRIT OF THE PROVISIONS OF INCOME - TAX ACT,1961. THE APPEAL HAD BEEN FIXED FOR HEARING FROM 28.7.2010 ONWARDS WHEN REPEATEDLY THE ASSESSEE WAS REQUIRED TO COMPLY WITH THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER AND THE LEARNED CIT(A). THE TRIBUNAL HAD EARLIER ADJOURNED THE HEARING OF APPEAL ON THE BASIS OF ASSESSEES INABILITY TO BRING FACTS ON RECORD. THE LEA RNED COUNSEL FOR THE ASSESSEE HAS FILED A PAPER BOOK IN SUPPORT OF INDISPOSITION OF THE ASSESSEE ANNEXING THEREIN VARIOUS MEDICAL CERTIFICATES FOR UNDERGOING TREATMENT IN HOSPITAL FOR A LONG TIME, FOR WHICH REASON THE LEARNED COUNSEL FOR THE ASSESSEE COUL D NOT GET THE FEEDBACK OR INSTRUCTION FROM THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ALLOW THE MISC.APPLICATION AND RECALL THE ORDER DT. 11.04.2012 FOR REHEARING OF THE APPEAL. MISC.APPLICATION NO.08/CTK/2012 IN ITA NO.26/CTK/2010 2 2. AFTER RECALLING THE ORDER OF THE ITAT, ON BEING QUERRIED FROM THE BENCH WHETHER HAVING RECALLED THE ORDER DT. 11.04.2012 THE APPEAL CAN BE TAKEN UP TO - DAY FOR HEARING, BOTH THE PARTIES AGREED, IN VIEW OF THE FACT THAT THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR RESTORATION OF THE ISSUE TO THE FILE OF THE ASSESSIN G OFFICER FOR THE SIMPLE REASON THAT THE MISMATCH BETWEEN THE FACTS AS HAVE BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER IN HIS LENGTHY ORDER HAS BEEN CONFIRMED BY THE LEARNED CIT(A) WITHOUT ASSIGNING ANY REASON INSOFAR AS EVEN THE SALE PROCEEDS IN BANK HAVE BEEN ASSESSED AS TAXABLE U/S.68 OF THE I.T.ACT BEING UNEXPLAINED CREDITS. WE DO FIND IT REASONABLE AND APPROPRIATE THAT THE ISSUE REQUIRES RE - CONSIDERATION BY THE ASSESSING OFFICER AFRESH. IN VIEW OF THIS, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARN ED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERATION DE NOVO AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND PASS NECESSARY CONSEQUENTIAL ORDER IN ACCORDANCE WITH LAW. 3. IN THE RESULT, THE MISC.APPLICATI ON FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 29.06.2012 H.K.PADHEE, SENIOR P RIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: MOHAMMED FAROOK TAYAB, MASTAN ROAD, BUXIBAZAR, CUTTACK 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 2(3),CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY. MISC.APPLICATION NO.08/CTK/2012 IN ITA NO.26/CTK/2010 3 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 25.06.2012 .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2 5 .06.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..