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Income Tax Appellate Tribunal, JAIPUR BENCH ‘A’ JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 06/JP/2019
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH ‘A’ JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 06/JP/2019 fu/kZkj.k o"kZ@Assessment Year :2014-15 cuke Sh. Manoj Kumar Lohiya ACIT, Circle Vs. Near Raj. Housing Board Sikar Sikar Raj. 332001 LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABJPL5887A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shrawan Kumar Gupta (Adv.) jktLo dh vksj ls@ Revenue by : Shri J. C. Kulhari (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 29/08/2019 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 02/09/2019 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against ex-parte order of ld. CIT(A)-4, Jaipur dated 22.11.2018 wherein the assessee has taken the following grounds of appeal:- “1. The impugned assessment order u/s 143(3) dated 30.12.2016 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.
2. The ld. CIT(A) has grossly erred in law as well as on the facts of the case in passing the exparty order without providing the adequate and reasonable opportunity of being heard to the assessee in the gross breach of law. Hence the entire addition and disallowance so made by the ld. AO and sustained by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
Sh. Manoj Kumar Lohiya, Sikar Vs. ACIT, Sikar 3.1 Rs. 5,00,000/-: The ld. AO has grossly erred in law as well as on the facts of the case in invoking the provision of section 145(3). The provision so invoked by the ld. AO and confirmed by the ld. CIT(A) being totally contrary to the provisions of law and facts on the record and hence the same may kindly be quashed. 3.2 Alternatively and without prejudice the ld. AO further erred in law as well as on the facts of the case in making lump sum trading addition of Rs. 5,00,000/-. Hence the addition so made by the ld. AO and sustained by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
4. Rs. 21,41,000/-: The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the disallowance of Rs. 21,41,000/- claimed on account of commission expenses. Hence the disallowance so made by the ld. AO and sustained by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
Rs. 2,00,000/-: The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the disallowance of Rs. 2,00,000/- out of various expenses, as business promotion, Conveyance, office, short & excess exp., Staff welfare, software, tours and travelling, telephone, Petrol & conveyance, insurance, Interest on car loan, also with respect to depreciation on car. Hence the disallowance so made by the ld. AO and sustained by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.
The ld. AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234 A,B,C and D as also withdrawing interest u/s 244A. The appellant totally denies it liability of charging of 2 Sh. Manoj Kumar Lohiya, Sikar Vs. ACIT, Sikar any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full.”
During the course of hearing, the ld. AR submitted that in this case the assessment has been completed u/s 143(3) at the total income of Rs.51,92,900/- by making the additions of Rs.28,41,000/- on account of various additions against which the assessee has preferred the appeal before the ld. CIT(A)-3. The matter was first fixed on 23.03.2018 before the ld. CIT(A)-3 and the A/R sought the time as he was recently engaged. And in the month of Sep. 2018, the appeal was transferred to CIT(A)-4, Jaipur. Thereafter the CIT(A) has fixed the matter for hearing on 22.10.2018 and the A/R sought time on the genuine reason as the local Counsel of the assessee was not belonging to Jaipur and was busy in some professional work being the time barring matters and the case was adjourned to 15.11.2018. However the A/R has received the papers in the month of Oct. 18 but unfortunately, the bundle of papers of the assessee were misplaced by the staff of the A/R during the Deepawali cleaning of the office. Hence the undersigned A/R of the assessee has appeared before the ld. CIT(A) on 15.11.2018 with the adjournment application and sought some time under the circumstances. The Id. CIT(A) has asked the undersigned A/R to file the adjournment application at the dak counter which was duly filed. It was submitted that the Id. CIT(A) has not rejected the adjourment application at that time and when the A/R has asked for next date then he has replied that the same shall be intimated. Thus the undersigned was under the impression that fresh notice fixing the next hearing date shall be communicated, however, surprisingly the Id. CIT(A) has passed the Ex-parte order by keeping the A/R and assessee in dark. And in the order at first page he has mentioned "None" in front of Present for the appellant when the 3 Sh. Manoj Kumar Lohiya, Sikar Vs. ACIT, Sikar undersigned had appeared with the adjournment application. Hence this action of the Id. CIT(A) is against the principle of law. Hence the order of the Id. CIT(A) and the entire additions on these facts and circumstances liable to be quashed and deleted. Alternatively and without prejudice to the above, it was submitted that the Id. CIT(A) has not decided the case on merit he has simply dismissed the appeal without giving any reasoning and adjudicating the grounds of appeal. And he could have called the assessment record and could have decided the matter. Hence the matter may kindly be restored to the Id. CIT(A) for deciding the same afresh.
3. The ld DR is heard who has relied on the findings of the lower authorities. It was submitted that the matter was listed for hearing on couple of occasions and as the assessee was not interested in pursuing its appeal, the ld CIT(A) was left with no option but to pass the ex-parte order.
We have heard the rival contentions and perused the material available on record. We find that though the matter has been fixed for hearing on couple of occasions, however, there have been no substantive hearing due to change of jurisdiction of the ld CIT(A) and the assessee moving adjournment applications from time to time. In the interest of justice and fair play and especially, given that the matter has not been decided on merits, we believe that the assessee deserve one more opportunity and the matter is set-aside to the file of the ld CIT(A) to decide the same on merits after reasonable opportunity to the assessee. Needless to say, the assessee shall appear before the ld CIT(A) and is at liberty to submit its contentions on merits which shall be considered by the ld CIT(A) as per law.
In the result, appeal of the assessee is allowed for statistical purposes.
Sh. Manoj Kumar Lohiya, Sikar Vs. ACIT, Sikar Order pronounced in the Open Court on 02/09/2019.