MILLAN KUMAR RAY,BHUBANESWAR vs. ITO, WARD-5(1), BHUBANESWAR

PDF · subscribers
ITA 30/CTK/2019Status: DisposedITAT Cuttack14 May 2019AY 2010-115 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that it would be unjust to deny crucial evidence simply because it was not produced before the Assessing Officer, especially in an ex-parte assessment. Therefore, the matter was remitted back to the Assessing Officer.

What were the facts?

The assessee's assessment was made ex-parte under Section 144/147 of the IT Act without providing an opportunity to submit documents. During the first appeal, the assessee submitted crucial documents, but the CIT(A) refused to accept them as fresh evidence.

What were the issues?

Whether the CIT(A) was justified in refusing to admit fresh evidence filed during the first appellate proceedings, and whether an ex-parte assessment warrants a more lenient approach to admitting evidence.

Which sections of the Income-tax Act were involved?

Section 144,Section 147

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK

Before: SHRI CHANDRA MOHAN GARG

For Appellant: Shri Sheshadeba Das, AR
For Respondent: Shri Subhendu Dutta, DR
Hearing: 14/05Pronounced: 14/05

This is an appeal filed by the assessee against the order of

the Commissioner of Income Tax(Appeals)-2, Bhubaneswar dated

30.11.2018 for the assessment year 2010-2011.

2.

The assessee has raised the following grounds of appeal:

“1. For that the order is illegal arbitrary erroneous and is based on incorrect appreciation of facts and circumstances of the case as such the same deserves to be quashed in limine.

2.

For that the order of the forum below is bad in law in as much as the same is not maintainable in eye of law on the

P a g e 1 | 5 ground that the learned CIT (Appeal) without giving reasonable opportunity and without considering the compliances given by the appellant, passed the impugned order as such the said order is in violation of the principle of natural justice.

3.

For that the order dtd.30.11.2018 passed by learned CIT (Appeal) is nonest in the eye of law since the Id. CIT(Appeal) confirmed the order of assessment U/s.144/147 of the IT Act, on flimsy ground that the evidences were not produced before the assessing officer and produced before the CIT(Appeal) as fresh evidence but the law is well settled that on production of the evidences before the appellate authority as fresh evidence, the CIT(Appeal) could have adjudicated the same either himself or by way of calling a remand report from the assessing officer.

4.

For that the orders of forum below are illegal since the appellant has disclosed the receipt of Rs.23,87,513/- as contract receipt from USHA INDIA Projects (p) Ltd. and offered income of Rs.1,91,318/- under the head of profit and gains from the business in his return of income. Hence, the same amount can in no circumstances be added further and as such the same is liable to be deleted for the interest of justice.”

3.

At the time of hearing, ld A.R. of the assessee submitted

that the Assessing Officer passed assessment u/s.144 r.w.s 147 of

the Act without giving opportunity to the assessee to produce the

relevant documents in support of the addition of Rs.23,87,513/-

before the Assessing Officer. However, during the first appellate

proceedings, the assessee produced the relevant documents i.e.

the contract receipt of Rs.23,87,513/- from USHA INDIA Projects

(p) Ltd. and offered income of Rs.1,91,318/- under the head of

P a g e 2 | 5 profit and gains from the business in his return of income. Ld AR

submitted that the CIT(A) refused to accept the receipts on the

ground that no such submission/evidence was filed before the

Assessing Officer. It was the prayer of ld A.R. of the assessee

that the matter be restored to the file of the Assessing Officer with

a direction to accept the documentary evidence in support of the

claim of the assessee.

4.

Ld D.R. fairly agreed to the submission of ld A.R. of the

assessee.

5.

I have heard the rival submissions and perused the

materials available on record of the Tribunal. In this case, the

assessment was made u/s.144/147 of the Act and the assessee

was prevent to furnish the required documents in support of its

claim. However, at the time of first appellate proceedings, when

the relevant documents were filed, the CIT(A) did not accept the

same on the ground that no fresh submission will be filed by the

assessee unless the assessee is covered by the exceptions

provided in Rule 46A of I.T.Rules, 1962 and confirmed the

addition made by the Assessing Officer.

6.

It would not be in the interest of justice to deny the

admission of crucial evidence by simply stating that it was not

P a g e 3 | 5 produced before the Assessing Officer. For this, reliance is placed

on the decision of Patna Bench of the Tribunal in the case of

Dwarka Prasad Vs. ITO, 63 ITD 1 (TM-Pat). Since the

assessment was passed u/s.144/147 of the Act exparte, qua-

assessee, therefore, Commissioner of Income Tax (Appeals)

should have admitted the additional evidence filed before him. In

view of this discussion and bearing in mind the entirety of the

case, I deem it fit and proper to remit the matter back to the file

of the Assessing Officer with a direction to accept the required

details/documents in support of the claim of the assessee and

adjudicate this issue after giving proper opportunity of hearing to

the assessee on the explanations and materials produced by the

assessee before the CIT (A). The assessee is also directed to

produce the materials and explanations before the Assessing

Officer and co-operate to the Assessing Officer for fresh

adjudication on this issue only.

7.

In the result, appeal of the assessee is allowed for statistical

purposes.

Order pronounced on 14/05/2019. Sd/- (Chandra Mohan Garg) JUDICIALMEMBER Cuttack; Dated 14 /05/209

P a g e 4 | 5 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Millan Kumar Roy, Flat No.VIM-255, Sailashree Vihar, Bhubaneswar

2.

The Respondent. ITO, Ward 5(1), Bhubaneswar 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT-2, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//

By order

Sr. Pvt. Secretary, ITAT, Cuttack

P a g e 5 | 5

More judgments on Section 147

All 49,210 judgments and leading authorities on Section 147 →

Recent GST High Court judgments

Search GST case law →