Shri Pramod Kumar Rastogi,, Lucknow vs Department Of Income Tax

ACIT v. Shri. Pramod Kumar Rastogi Range IV C-4242/1, Sector 6, Rajaji Puram Lucknow Lucknow TAN/PAN:AFKPR0302K (Appellant) (Respondent)

Appellant by: Shri. R. K. Ram, D.R. Respondent by: None Date of hearing: 20 02 2015 Date of pronouncement: 27 02 2015

ORDER

PER SUNIL KUMAR YADAV:

This appeal is preferred by the Revenue against the order of the ld. CIT(A), inter alia, on various grounds, which are as under:-

1. The CIT(A) has erred in law and on facts of the case in deleting the addition made on account of estimation of profit/disallowance of loss claimed. He failed to appreciate that the A.O. had no alternative but to make the estimate u/s 145(3) of the Act as the assessee did not produce the books of account before him.

2. The CIT(A) has failed to appreciate that the estimate of profit made was not incorrect or unreasonable, as the AO had adopted the rate disclosed by the assessee himself in the immediately preceding year.

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3. The CIT(A) has erred in law and on facts of the case in deleting the disallowances made by the AO out of claim for expanses in improvement of capital asset even though the assessee failed to submit any evidence for the same.

4. The CIT(A) has erred in law and on facts of the case in deleting the disallowances made by the AO out of claim for expenses incurred on account of brokerage paid for sale of land even though the assessee failed to submit any evidence for the same.

5. The CIT(A) has erred in law and on facts of the case in deleting the addition of Rs. 22 lakhs made by the AO u/s 69 of the I.T. Act as the assessee had failed to prove the identity of the depositor of the cash in the bank.

2. This appeal came up for hearing on 20.2.2015, but none appeared on behalf of the assessee. On perusal of record, it is noticed that this appeal was filed by the Revenue on 13.6.2012. Thereafter, notice was issued by the Tribunal, but it was not served upon the assessee. Later on notice was issued through registered A/D, but the same was received back unserved with the remark that at the given address, assessee is not available, as he has sold out his house. Thereafter the notice was issued through the Department, but the Revenue did not get the notice served upon the assessee. The matter was listed for hearing at number of times, with the direction to issue notice through the Department, but no effort was made by the Department/Revenue to get it served. Notice was also issued through registered A/D at about three times, but all the time it was received back unserved with the remark that the assessee is not available at the given address, as he has left the house. Since this appeal was filed by the Revenue, the onus is upon them to at least get the notice served upon the assessee. When the address of the assessee is changed, it is for the Revenue to find out the correct address so that notice of hearing could :-3-:

be served upon the assessee. But it has been noticed that despite various directions of the Tribunal, the Revenue could not get the notice served upon the assessee. When a specific query was raised from the ld. D.R., it was told that all the time they have sent notices to the Assessing Officer with a direction to get it served. The responsibility for service of notice is upon the Assessing Officer, therefore, whatever lapses are occurred, it was on the part of the Assessing Officer. Despite the fact that the Revenue has all the infrastructures for service of notice upon the assessee, but they did not do it, nor did they apply to the Tribunal for substituted service as prescribed under order V of Rule 20 of the Civil Procedure Code 1908. Under these circumstances, we have no other option but to dismiss the appeal of the Revenue for non-prosecution, as it would not be fair to proceed with the hearing of appeal of the Revenue in the absence of the assessee. It is not out of place to mention here that on earlier occasion also, the Tribunal has expressed its displeasure on the non-cooperative attitude of the Assessing Officer. Most of the time, whenever notice was issued through the ld. D.R. for its service, the ld. D.R. become helpless, as the concerned Assessing Officer did not make compliance of the directions of the Tribunal for service of notice of hearing upon the assessee. The displeasure of the Tribunal was also communicated to the Chief Commissioner of Income-tax, Lucknow, but no step has been taken by the Chief Commissioner to instruct the Assessing Officer for compliance of the directions issued by the Tribunal for service of notice of hearing upon the assessee. Therefore, we have no other option, but to bring this attitude of the Department with regard to the service of notice of hearing in the Revenue's appeal to the notice of the Board. Accordingly, we direct the Registry to send a copy of this order of the Tribunal to the Chairman, C.B.D.T. for issuance of necessary directions to the Departmental Officers for service of notice of hearing upon the assessees in the Revenue's appeal :-4-:

whenever directed by the Tribunal. Copy of this order may also be sent to the Chief Commissioner of Income-tax, Lucknow for information and necessary action in this regard.

3. In the result, appeal of the Revenue stands dismissed.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED: 27th February, 2015 JJ:2002

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar