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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: SHRI CHANDRA MOHAN GARG
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.
The sole grievance involved in this appeal is that the
Commissioner of Income Tax(Appeals), Bhubaneswar was not
justified in confirming the reassessment made exparte u/s.
144/263 of the Act.
The brief facts of the case are that the assessee is a firm
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.
In pursuance to order u/s.263 of the Act of the CIT, the
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.
On appeal, the CIT(A) partly allowed the appeal of the
assessee. Hence, the assessee is in further appeal before the
Tribunal.
Before me, ld A.R,. of the assessee submitted that the order
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.
On the other hand, ld D.R,. supported the orders of lower
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.
I have heard the rival submissions, perused the orders of
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.
In the result, appeal of the assessee is allowed for statistical
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.
The Respondent. ITO, Angul Ward, Angul 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT- Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. By order //True Copy//
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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