B.BANAMBER & CO.,ANGUL vs. ITO, ANGUL WARD, ANGUL

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER

ITA No.422/CTK/2017 Assessment Year : 2009-2010

M./s. Banamber & Co., Vs. ITO, Angul Ward, Angul. Bhairabi Sahi, Talcher Town, Angul. PAN/GIR No.AADFB 2121 Q (Appellant) .. ( Respondent)

Assessee by : Shri S.N.,Sahu, AR Revenue by : Shri Subhendu Dutta, DR

Date of Hearing : 23/01/ 2019 Date of Pronouncement : 23 /01/ 2019

O R D E R This is an appeal filed by the assessee against the order of

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

22.2.2017 for the assessment year 2009-2010.

Commissioner of Income Tax(Appeals), Bhubaneswar was not

justified in confirming the reassessment made exparte u/s.

144/263 of the Act.

and derives income from contract works and from hire charges by

letting out machineries(excavator). The original assessment was

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completed u/s.143(3) in the case of the assessee on 16.11.2011

determining total income at Rs.13,39,060/- and ascertaining the

tax liability of Rs.11,35,100/-. The matter was travelled upto the

Tribunal and the Tribunal has allowed the credit of TDS in the

hands of the assessee from individual hand of the partner subject

to furnishing of declaration under Rule 37A by the assessee.

However, the assessee did not furnish the declaration under Rule

37A before the Assessing Officer. During the course of appellate

proceedings, the CIT invoked his jurisdiction under section 263 on

the ground that the assessment order passed by the Assessing

Officer was erroneous and prejudicial to the interest of the

revenue and directed the Assessing Officer to redo the assessment

after examining/verifying/enquiring the issues raised in show

cause letter issued for initiation of proceedings u/s.263 of the Act.

Assessing Officer issued various notices u/s.142(1) of the Act,

which were not complied by the assessee. However, the assessee

furnished a written submission on 10.2.2014 in response to notice

u/s.142(1) of the Act stating therein that since the ITAT has

disposed of the appeal the CIT has no jurisdiction to invoke

section 263 of the Act. As the assessee did not comply various

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notices issued, the Assessing Officer passed order u/s.144 r.w.s.

263 of the Act, inter alia, making various disallowances/additions.

assessee. Hence, the assessee is in further appeal before the

Tribunal.

u/s.263 of the Act passed by the CIT was not communicated to

the assessee and, therefore, the order u/s.263 is barred by

limitation. He also submitted that without affording reasonable

opportunity to the assessee, the reassessment made u/s.144/263

is also against the principle of natural justice. Ld A.R. also

submitted that the CIT(A) has provided only one opportunity to

the assessee to explain its stand and explanation regarding the

allegation made by the Assessing Officer. He submitted that in

the interest of justice and to sub-serve the principle of natural

justice, one more opportunity may kindly be allowed to the

assessee to represent its case before the Assessing Officer.

authorities. Ld D.R. submitted that when the assessee is not

appearing and attending the proceedings then the authorities

below have no option but to proceed exparte. Therefore, the

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Assessing Officer was right in framing order u/s.144/263 of the

Act. However, ld D.R. in all fairness submitted that if it is found

just and proper for fresh assessment, then the department has no

serious objection if the case is remitted to the file of the Assessing

Officer for framing denovo assessment.

lower authorities and materials available on record. I observe

that the CIT(A) has not provided sufficient opportunities of being

heard to the assessee, which resulted into the impugned additions

made by the Assessing Officer and confirmed by the CIT(A). It is

well established principle of tax jurisprudence that the assessee is

required to furnish all necessary documentary evidence, details

and other relevant explanations before the Assessing Officer

during the assessment proceedings as well as at the first appellate

proceedings but unfortunately, in the present case, the assessee

was not allowed to do so and empty handed assessee is before the

Tribunal agitating the additions made by the Assessing officer and

confirmed by the CIT(A). Keeping in view the entire facts and

circumstances of the case, I am of the considered opinion that it

would meet the ends of justice, if the case is remitted back to the

file of the Assessing Officer for denovo assessment. Therefore, I

set aside the order of the lower authorities and remand the matter

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back to the file of the Assessing Officer to redo the assessment

after affording reasonable opportunity to the assessee. The

assessee is also directed to co-operate with the Assessing Officer

for early disposal of the case.

purposes.

Order pronounced on /01/2019.

(Chandra Mohan Garg) JUDICIALMEMBER Cuttack; Dated /01/209 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : M./s. Banamber & Co., Bhairabi Sahi, Talcher Town, Angul.

Sr. Pvt. Secretary, ITAT, Cuttack

Date Initial 1. Draft dictated on 23.1.19 Sr.PS 2. Draft placed before author 23.1.19 (dictation pad has been enclosed Sr.PS along with original file) 3. Draft proposed & placed before the second AM member 4. Draft discussed/approved by Second Member. AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the OS 9. Date on which file goes to the SPS 10. Date of dispatch of Order.

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