Arun Kar, Asansol vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "C", KOLKATA

[Before & Hon'ble Sri N.K.Saini, AM & Hon'ble Sri Mahavir Singh, JM] ITA No.588/Kol/2010 Assessment Year : 2002-03

(APPELLANT ) (RESPONDENT) Arun Kar,Prop.Hi-Tech Engineering -vs- A.C.I.T., Circle-2, Asansol Asansol (PAN:AESPK 3949 N)

For the Appellant Shri U.Dasgupta, Advocate

For the Respondent Shri Vijay Kumar, CIT(DR)

Date of Hearing : 21.01.2015 Date of Pronouncement : 21.01.2015.

ORDER

Per Shri N.K.Saini, AM

This appeal by the assessee is directed against the order dated 07.11.2007 of ld. C.I.T-(A)-Asansol and pertains to A.Yr.2002-03.

2. This appeal was earlier heard and disposed of by this Bench of the Tribunal, ex-parte vide order dated 04.04.2012. Thereafter, on the request of the assessee in this Miscellaneous Application No.56/Kol/2012, the said exparte order dated 04.04.2012 was recalled. In this appeal the registry has pointed out that the appeal was time barred by 114 days. The assessee had moved an application dated 10th March, 2010 for condonation of delay. The contents therein are as under :-

"1. That the appellant is the sole proprietor of M/s. Hi Tech Engineering with place of business at Dutta Bagan, Sen Raleigh Road, Asansol, and this appeal has been preferred against the order of the Ld. Commissioner of Income Tax (A), Asansol, in respect of the above Asst.Year, against his order dated 07.11.2007.

2. That though the order by the ld. CIT(A)was passed on 7.11.2007, the same was served on the appellant Mr.Arun Kar, at Asansol CIT office, by hand delivery in the month of September, 2009, and has been received by the appellant himself personally.

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3. That the appeal against the said order should have been filed before the Hon'ble Tribunal, within a period of sixty days from the date of receipt and the last date of filing the same was November, 2009.

4. That on account of personal health problems the appellant was totally indisposed and was not in a position to attend office or attend to his daily work during the period from November, 2009 to February, 2010 and was under medical treatment in Asansol and also in New Delhi.

5. That subsequently, in the month of March, 2010, the appellant rejoined office and has been able to contact his lawyers and prepared this appeal and has filed the same before the Hon'ble Tribunal, Kolkata.

6. That since the appellant was prevented by sufficient cause from filing the appeal in time it is humbly prayed before your honours that the delay in filing the appeal may please be condoned and the appeal may please be admitted to be heard on merits.

7. That it is further submitted that huge tax demand has already been raised on the individual appellant by the revenue, in orders passed exparte, almost at all stages, without considering the appellant's submission and arguments already filed and on record and the appellant has been prejudiced.

8. That the Hon'ble Tribunal is the highest fact finding authority and non admittance of this appeal will lead to great financial hardship and injustice on the appellant.

9. That it is humbly prayed that the appeal may please be admitted to be heard and decided on merits."

2.1. In support of the above application the assessee also filed the medical certificates including discharge slip of Govt. of Civil hospital Gadkhara which are placed on record.

2.2. During the course of hearing the ld. Counsel of the assessee reiterated the contents of the miscellaneous application and requested for condonation of delay. In his rival submissions the ld. C.I.T., Departmental Representative opposed the condonation of delay.

2.3. After considering the submissions of both the parties and the material on the record, it is noticed that the assessee was sick and admitted in the hospital. So, there was a reasonable cause in filing the appeal belated. We, therefore, considering the totality of the facts, are of the view that it is a fit case for condoning the delay. Accordingly the delay is condoned and the appeal is admitted.

3. The following grounds have been raised in this appeal :

"1. For that the appellant order passed by the Ld.CIT(A) is a non speaking order passed without giving any cognizance to the written arguments/submissions and 3 ITA No.588/Kol/2010 Arun Kar,Prop.Hi-Tech Engineering, Asansol A.Yr.2002-03 evidences, filed by the appellant in course of appellate proceedings and the same is legally unjustified.

2. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining the addition of Rs.4,18,054/- on A/c of telephone expenses when the same are all supported by bills and vouchers, and the addition may please be deleted.

3. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining the addition of Rs.2,06,369/- on A/c of labour wages, when the same are all supported by documentary evidence, and the addition may please be deleted.

4. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining the addition of Rs.5,16,350/- on A/c of site expenses (when the total claim of expenditure under this head is only 8.5% of Gross receipts) are all supported by documentary evidence, and the addition may please be deleted.

5. For that on the facts of the case the Ld. CIT(A) was not justified in disallowing the claim for depreciation of Rs.74,622/- on truck and motor vehicles, used by the appellant in own business, and the same may please be allowed.

6. For that on the facts of the case the Ld. CIT(A) was not justified in adding back an amount of Rs.1,34,791/- u/s 41(1) of the Act'61, as cessation of liability, when purchases from parties has been paid by A/c payee cheques in subseque3nt years, and the same may please be deleted.

7. For that on the facts of the case the Ld. CIT(A) was not justified in adding back an amount of Rs.2,05,000/- on a/c of unexplained investment in DBD, when the same has been made out of bank and duly reflected in balance sheet, and may please be deleted.

8. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining an addition of Rs.19,475/- on interest A/c and the same may please be deleted.

9. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining an addition of Rs.7,991/- on discount A/c and the same may please be deleted.

10. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining an addition of 1,01,000/- on Bank FDR A/c, when the same has been made out of bank withdrawals, and the same may please be deleted.

11. For that on the facts of the case the Ld. CIT(A) was not justified in sustaining an addition of Rs.10,100/- on F/D interest A/c and the same may please be deleted.

12. For that the appellant craves leave to add, alter, amend any further grounds of appeal before or at the time of hearing."

4. The facts of the case in brief are that the original assessment order u/s 143(3) of the I.T.Act, 1961 (hereinafter referred to as the 'Act') was passed in this case on 21.03.2005 at a total income of Rs.33,24,190/-. Being aggrieved the assessee filed revision petition u/s 264 of the Act before ld. CIT, who vide order dated 21.03.2006 set aside the assessment order and directed the AO to make the assessment denovo. Thereafter the AO passed the assessment order u/s 144 of the Act, ex parte at an income of Rs.27,74,190/- by making various additions. While passing the said assessment order the AO mentioned that the case was getting barred by limitation on 31.12.2006 and nobody appeared when the case was fixed for hearing.

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4.1. Being aggrieved the assessee carried the matter to the ld. CIT(A), who also decided the appeal of the assessee ex parte and sustained the majority of the additions made by the AO. While doing so the ld. CIT(A) observed in paras 3 and 4 of the impugned order as under :-

"3. More than several hearings were also allowed by the undersigned on 12.09.2007, 11.10.2007, 13.10.2007 and 06.11.2007. Except proof of TDS on account of Sales tax, nothing other material has been submitted before the undersigned. However, the assessee has filed his submission dt. 11.10.2007.

4. Hence I left with no alternate but to finalize the Appeal on the basis of material made available by the A.R., as his submission and the Assessment Order. I have considered the submission of the Appellant and also have gone through the Assessment Order. My observation and decision are as under :"

5. Now the assessee is in appeal before the Tribunal. The ld. Counsel of the assessee submitted that the AO framed the assessment ex parte and made the additions arbitrarily by ignoring the relevant documents furnished by the assessee for his claim. It was further stated that the ld. CIT(A) also sustained the majority of the additions without appreciating the facts in the right perspective. He requested that the matter may be sent back to the AO for deciding afresh after considering the documents available on record.

6. In his rival submissions the ld. DR reluctantly agreed for the above proposal of the ld. Counsel of the assessee.

7. After considering the submissions of both the parties and the materials available on record it appears that neither the AO nor the ld.CIT(A) had considered the facts of the present case in the right perspective and decided the case in the absence of the assessee. It is well settled that nobody should be condemned unheard as per the maxim "Audi Alteram Partem ". We therefore keeping in view the principles of natural justice deem it appropriate to set aside this case back to the file of AO to be decided in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

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8. In the result the appeal filed by the assessee is allowed for statistical purposes.

Order pronounced in the open court on 21.01.2015.

Sd/- Sd/- [ Mahavir Singh ] [N.K.Saini] Judicial Member Accountant Member

Date: 21.01.2015.

R.G.(.P.S.)

Copy of the order forwarded to:

1. Arun Kar, Prop. Hi-Tech Engineering, Dutta Bagan, Sen Raleigh Road, Asansol.

2 A.C.I.T., Circle-2, Asansol.

3. CIT(A)- Asansol. 4. CIT- Kolkata

CIT(DR), Kolkata Benches, Kolkata.

True Copy, By order,

Asst. Registrar, ITAT, Kolkata Benches