Shri Madan Lal Dusad, BIKANER v. DCIT, BIKANER

ITA 137/JODH/2013 | 2007-2008
Pronouncement Date: 08-10-2013 | Result: Allowed

Appeal Details

RSA Number 13723314 RSA 2013
Assessee PAN AFCPD9456L
Bench Jodhpur
Appeal Number ITA 137/JODH/2013
Duration Of Justice 6 month(s) 28 day(s)
Appellant Shri Madan Lal Dusad, BIKANER
Respondent DCIT, BIKANER
Appeal Type Income Tax Appeal
Pronouncement Date 08-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 08-10-2013
Date Of Final Hearing 08-10-2013
Next Hearing Date 08-10-2013
Assessment Year 2007-2008
Appeal Filed On 11-03-2013
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NO. 137/JODH/2013 (A.Y. 2007-08) SHRI MADAN LAL DUSAD VS ITO WARD-1(2) P/O M/S CHOUDHARY TRADERS BIKANER. BEHIND JAIN P.G COLLEGE BIKANER. PAN NO. AFCPD 9456 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. KISHAN GOYAL. DEPARTMENT BY : SH. N.A. JOSHI- DR. DATE OF HEARING : 08/10/2013. DATE OF PRONOUNCEMENT : 08/10/2013. O R D E R PER HARI OM MARATHA J.M. : THIS APPEAL OF THE ASSESSEE FOR A.Y. 2007-08 IS DI RECTED AGAINST THE ORDER OF LD. CIT(A) BIKANER DATED 25/02/2011. 2. THIS APPEAL IS FOUND TO BE DELAYED BY 677 DAYS. A CONDONATION PETITION HAS BEEN FILED BY THE ASSESSEE WHICH IS DU LY SUPPORTED BY A SWORN IN AFFIDAVIT OF THE ASSESSEE-APPLICANT. IN T HIS AFFIDAVIT THE 2 ASSESSEE HAS MENTIONED THE FOLLOWING REASONS FOR DE LAY IN FILING OF THIS APPEAL: 1. THAT DCIT CIRCLE 2 BIKANER HAS COMPLETED MY INCOME TAX ASSESSMENT U/S 144 FOR THE ASSESSMENT YE AR 2007-08. 2. THAT I AM NOT AWARE ABOUT THE TECHNICAL PROVIS IONS OF INCOME TAX ACT 1961 AND I WAS NOT HAVING ANY ALTE RNATE BUT TO RELY UPON MY LEGAL COUNSEL TO TAKE UP MY SA ID MATTER FOR ONWARD APPEAL BEFORE CIT(APPEALS) OR ITA T AS THE CASE MAY BE. 3. THAT MY PREVIOUS LEGAL COUNSEL DID NOT FILE SE COND APPEAL BEFORE ITAT IN TIME AS I AM NOT AT ALL CONV ERSANT WITH THE TECHNICAL RULES OF LAW AND ITS LIMITATION. 4. THAT I HAVE SUFFERED HUGE LOSSES AND NOBODY WI TH TO RESCUE ME FROM THIS HAZARDOUS SITUATION. 5. THAT AS NO DEMAND WAS OUTSTANDING AG AINST ME OF INCOME TAX DEPARTMENT THEREFORE I WAS UNDER IMPRESSION THAT MY MATTER FOR THE ASSESSMENT YEAR 2 007-08 HAD ATTAINED FINALITY SUBSEQUENTLY I DISCONTINUED SERVICES OF PREVIOUS LEGAL COUNSEL AS I HAVE RECEIVED NOTICE FROM I.T. DEPARTMENT FOR PENALTY THEREFORE I APPOINTED NEW LEGAL COUNSEL WHO GUIDED ME TO FILE SECOND APPEAL BEFORE ITAT. 3 6. THAT IN THE CIRCUMSTANCES NARRATED ABOVE DELAY IN FILING APPEAL FOR THE ASSESSMENT YEAR 2007-08 BEFOR E ITAT HAS HAPPENED AND FOR WHICH I HAVE MOVED APPLICATION SEEKING CONDONATION OF DELAY IN FILING APPEAL TO SA VE ME FROM THIS DIFFICULT SITUATION. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFU LLY PERUSED THE ENTIRE MATERIAL ON RECORD. THE HON'BLE SUPREME COURT HAS LONG BACK LAID DOWN A PERFECT GUIDELINE WHILE DECIDING T HE CASE OF COLLECTOR LAND ACQUISITION VS MST. KATIJI & OTHERS (167 ITR 471) IN THEIR PITH AND SUBSTANCE THAT WHEN SUBSTANTIAL JUS TICE IS PITTED AGAINST PEDANTIC REASONS THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. RECENTLY THE HON'BLE SUPREME COURT HAS REITERATED THE SAME PRINCIPLE WHILE DECIDING THE CASE OF IMPROVEMENT TRUST VS UJA GAR SINGH (2010) 6SCC 786 (S.C) [SOURCE WWW.ITATONLINE.ORG ] BY OBSERVING THAT JUSTICE CAN BE DONE ONLY WHEN THE MATTER IS FOUGHT ON MERIT S AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPOSE IT OF ON SUCH TECHNICALITIES AND THAT TOO AT THE VERY THRESHOLD. IT WAS STRONG LY LAID THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE FACE OF IT DELAY SH OULD BE CONDONED. IN THIS CASE NO SUCH MALAFIDE IS EXHIBITED. THE D ELAY STANDS REASONABLY EXPLAINED. HENCE BY FOLLOWING THE DICT UM OF THE ABOVE DECISIONS WE CONDONE THIS DELAY AND ADMIT THE APPE AL. 4 3. IN THIS APPEAL THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE: 1. THAT ORDER PASSED BY CIT(A) U/S 250/144 OF TH E INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 2007- 08 IS BAD IN LAW AND ON FACTS. 2. THAT ORDER PASSED BY ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 2007- 08 IS BAD IN LAW AND ON FACTS. 3. THAT ID. CIT(A) HAS WRONGLY CONFIRMED THE ASSE SSMENT MADE BY THE ASSESSING OFFICER U/S 144 IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT ID CIT(A) HAS NOT PROVIDED PROPER OPPORTU NITY OF HEARING ON THE APPEAL THEREFORE IT IS VIOLATIVE O F THE PRINCIPLES OF NATURAL JUSTICE IN THE FACTS AND CIRC UMSTANCES OF THE CASE. 5. THAT ID CIT(A) HAS ERRED IN THE FACTS OF THE C ASE IN NOT ALLOWING THE CLAIM OF LOSS MADE BY THE ASSESSEE TH EREFORE THE CLAIM OF LOSS MADE BY THE ASSESSEE IS REQUESTED TO BE ALLOWED. 6. THAT WITHOUT PREJUDICE TO THE FOREGOING CIT(A) HAS ERRED IN NOT ADMITTING THE REQUEST OF THE ASSESSE E OF ALLOWING HIM TO PRODUCE ADDITIONAL EVIDENCE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5 7. THAT ASSESSING OFFICER HAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING ON THE CASE THEREFORE IT I S VIOLATIVE OF THE PRINCIPLES OF NATURAL JUSTICE IN T HE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THAT ASSESSING OFFICER HAS WRONGLY DENIED THE C LAIM OF LOSS IN BUSINESS SUFFERED BY THE ASSESSEE IN THE FA CTS AND CIRCUMSTANCES OF THE CASE THE LOSS CLAIMED BY THE ASSESSEE IS GENUINE AND REQUESTED TO BE ACCEPTED. 9. THAT ASSESSING OFFICER HAS WRONGLY HELD THAT TH E ASSESSEE HAS CLAIMED HUGE LOSSES ON ADVANCES OF SOM E GHOST CREDITORS AS BOOKS OF ACCOUNT OF THE ASSESSEE ARE A UDITED U/S 44AB OF THE INCOME TAX ACT 1961 AND ALL THE F INANCIAL STATEMENTS WERE BEFORE THE ASSESSING OFFICER THERE FORE THE LOSS OF THE ASSESSEE WAS GENUINE AND REQUESTED TO BE ALLOWED. 10.THAT APPELLANT PRAYS FOR JUSTICE AND MAY PLEASE BE ALLOWED TO ADD AMEND OR DELETE ANY OR FURTHER GROU NDS OF APPEAL ON OR BEFORE HEARING ON THE CASE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. FACTS IN BRIEF ARE T HAT RETURN OF INCOME FOR THE A.Y. 2007-08 WAS FILED ON 29/02/2008 DECLAR ING A LOSS OF RS. 7 186 9067-. BOOKS OF ACCOUNT OF THE ASSESSEE ARE A UDITED U/S 44AB OF THE INCOME TAX ACT 1961. THE AUDITED FINANCIAL STA TEMENTS WERE FILED 6 BEFORE THE A.O. AND WERE ON REVENUE FILE. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS NOTICE ISSUED U/S 143(2) FO R 19/11/2009 REMAINED UNATTENDED. FINAL LETTER ISSUED BY THE A.O . FOR 8/12/2009 WAS ALSO NOT COMPLIED WITH. HOWEVER THE LD. AR OF THE ASSESSEE ATTENDED THE OFFICE OF THE A.O. ON 11/12/2009 AND S OUGHT ADJOURNMENT FOR ONLY 10 DAYS AND PROMISED TO FULFILL THE REQUIR EMENT FOR COMPLETING THE ASSESSMENT RAISED BY THE A.O. IN QUESTIONNAIRE ISSUED BY HIM. THE LD. AR OF THE ASSESSEE PERSONALLY MET THE OFFICIALS AND NARRATED THE UNAVOIDABLE CIRCUMSTANCES FOR NOT HAVING COMPLIED W ITH THE EARLIER OPPORTUNITIES BUT ALL IN VAIN. THE A.O. COMPLETED THE ASSESSMENT ON 15.12.2009 EX-PARTE U/S 144. IT WAS SUBMITTED THAT ASSESSEE HAS SUFFERED HUGE LOSSES AND IN THAT CASE NOBODY WAS WI TH HIM TO RESCUE HIM TO OVERCOME FROM DISASTROUS SITUATION. THE ASSE SSING OFFICER WAS SUPPOSED TO COMPLETE THE EX-PARTE ASSESSMENT JUDICI OUSLY. IT IS WELL SETTLED LEGAL POSITION THAT EX-PARTE ASSESSMENT CAN NOT BE MADE ON WHIMS AND ARBITRARY. THE A.O. IS SUPPOSED TO ACT IN A JUDICIOUS MANNER. THE ASSESSING OFFICER WITHOUT CONDUCTING AN Y ENQUIRY HELD THAT ASSESSEE WAS BOOKING SUCH HUGE LOSSES ON ADVAN CES OF SOME GHOST CREDITORS. BY SIMPLY MENTIONING THIS HE DENIED THE CLAIM OF LOSS FROM BUSINESS ACTIVITY AND ASSESSED THE INCOME OF THE AS SESSEE AT NIL BY IGNORING THE LOSS DECLARED BY THE ASSESSEE. EX-PART E ASSESSMENT MEANS 7 TO THE BEST OF THE JUDGMENT HOW THE A.O. HAS REACH ED TO THE CONCLUSION THAT THE FINANCIAL STATEMENTS OF THE ASS ESSEE WHICH WERE DULY AUDITED BY INDEPENDENT CHARTERED ACCOUNTANT CO NTAINED SOME GHOST CREDITORS. THIS IS CERTAINLY NOT A BEST JUDGM ENT ASSESSMENT PARTICULARLY WHEN AUDITED FINANCIAL STATEMENTS WERE AVAILABLE WITH THE ASSESSING OFFICER. BESIDES THIS IT WAS SUBMITTED T HAT WHEN THE LD AR OF THE ASSESSEE ATTENDED THE OFFICE OF THE A.O. ON 11 .12.2009 AND SOUGHT ADJOURNMENT FOR 10 DAYS HE SHOULD HAVE WAITED FOR 10 DAYS BUT HE DENIED THE OPPORTUNITY OF HEARING BE GRANTED TO THE ASSESSEE THEREFORE THE A.O. HAS VIOLATED THE PRINCIPLES OF NATURAL JUSTICE. AUDI ALTERAM PARTEM IS QUINTESSENTIAL IN EVERY QUASI-JUD ICIAL PROCEEDING. AGGRIEVED BY THE ASSESSMENT ORDER THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DESPITE THE SPECIFIC REQUEST TO ADMIT ADDITIONAL EVIDENCE AS THE ASSESSEE WAS NOT I N A POSITION OR FOR ONE OR OTHER REASONS THE REQUIRED DETAILS/INFORMATI ON COULD NOT BE FILED BEFORE THE A.O. WAS REJECTED IN LIMINE. HE HE LD THE ASSESSMENT MADE U/S 144 BY ASSESSING OFFICER AS JUSTIFIED. THE CIT(A) HAS ALSO TRANSGRESSED THE PRINCIPLES OF NATURAL JUSTICE BY N OT PROVIDING REASONABLE OPPORTUNITY TO PRODUCE EVIDENCE IN SUPPO RT OF CLAIM OF LOSS. THE CLAIM OF LOSS OF THE ASSESSEE WERE SUPPORTED BY THE AUDITED SET OF FINANCIAL STATEMENTS AND OTHER NECESSARY DOCUMENTAR Y EVIDENCES 8 HENCE THE LD. A.R. PLEADED THAT THE CLAIM WAS GENUI NE AND MAY PLEASE BE ALLOWED. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS IT WAS FELT FAIR AND JUST IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THAT THE GROUNDS OF APPEAL NEED TO BE RESTORED BACK TO THE FILE OF THE A.O. WITH THE DIRECTION THAT HE SHALL MAKE A DE NOVO ASSESSMENT O RDER AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY WE RESTORE THIS APPEAL TO THE FILE OF THE A.O. FOR FRE SH ADJUDICATION. 6. AS A RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 8 TH OCTOBER 2013. SD/- SD/- (N.K.SAINI) [HARI OM MARAT HA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 8 TH OCTOBER 2013. VL/- 9 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR ITAT JODHPUR