KAPIL DEO TRIPATHI,LUCKNOW vs. DCIT CIRCLE-4 LUCKNOW, LUCKNOW
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Income Tax Appellate Tribunal, ‘A’ BENCH LUCKNOW
Before: HON’BLE SHRI G. D. PADMAHSHALI & SHRI SUBHASH MALGURIA
IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH LUCKNOW BEFORE HON’BLE SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER AND SHRI SUBHASH MALGURIA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.231/LKW/2023 निर्धारण वर्ा / Assessment Year : 2016-17 Kapil Dev Tripathi C-2395, Raja Ji Puram, Lucknow, UP-226017 PAN: ABZPT7328G . . . . . . . अपीलार्थी / Appellant बिधम / V/s. Asstt Commissioner of Income Tax ACIT/DCIT-4, Lucknow . . . . . . . प्रत्यर्थी / Respondent द्वधरध / Appearances Assessee by : Mr Prashant Kr. Verma [‘Ld. AR’] Revenue by : Mr Sunil Kumar Rajwanshi [‘Ld. DR’] सुनवाई की तारीख / Date of conclusive Hearing : 24/06/2024 घोषणा की तारीख / Date of Pronouncement : 24/06/2024 आदेश / ORDER Per G. D. Padmahshali, AM; Against the ex-parte DIN & Order ITBA/NFAC/S/250/2023- 24/1053079897(1) dt. 23/05/2023 passed u/s 250 of the Act by the National Faceless Appeal Centre, Delhi [‘NFAC/ CIT(A)’ hereinafter] the assessee came in appeal u/s 253(1)(a) of the Income Tax Act [‘the Act’ hereinafter].
At the outset of the physical hearing the Ld. AR appearing on behalf of the appellant assessee without touching the merits of the case submitted that, having preferred an appeal against the assessment order the assessee could not prosecute the same owning to financial distress coupled with ability to engage reasonable counsel. It is however further canvassed by the Ld. AR that given an opportunity of regress the assessee would sincerely prosecute and represent
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Kapil Dev Tripathi Vs ACIT ITA No.231/LKW/2023 AY: 2016-17 his case on merits by adducing requisite material in support of grounds of appeal raised before the Ld. NFAC. Per contra the Ld. DR Mr Sharma vehemently objecting the remand request argued that, during assessment proceedings the assessee was accorded with not less than six clear opportunities which the assessee squandered. In the absence of material suggesting the compliance of provisions of Chapter XVII-B of the Act in relation to plant hiring charge, the disallowance u/s 40(a)(ia) of the Act was triggered. Further when the assessee could not prove veracity & genuineness 10% of such expenses disallowed for analogous reasons. The assessee was no different in first appellate proceedings, in the event the Ld. NFAC countenanced the disallowance in line with the findings of the Ld. AO.
We have heard rival parties’ submissions on limited issue and subject to rule 18 of ITAT Rules, 1983 perused the material placed on record. We note that, the assessee an individual who’s return of income was subjected to scrutiny under CASS, wherein the Ld. AO made two bullet additions on account of disallowances viz; (1) 30% disallowance of amount of expenditure towards plant hiring charges (2) 10% estimated disallowances of amount of certain expenses. The former disallowance was triggered owning to non- deduction of taxes at source [‘TDS’ hereinafter’] and later was on account of non-production of bills/invoices which remained unproved u/s 37(1) of the Act. The appellant was continued to be static in the matter of non-compliance in the first appellate proceedings as well, so is the result.
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Kapil Dev Tripathi Vs ACIT ITA No.231/LKW/2023 AY: 2016-17 4. The record prima-facie reveals us that, the assessee for an acceptable & sufficient reason could neither attend nor could appoint proper consultant to represent his case before the Ld. NFAC. When assessee failed to represent his case on merits with cogent evidences and submissions etc., the Ld. NFAC was constrained to dismiss the appeal ex-parte echoing the findings of Ld. AO but without any independent findings.
We are heedful to the restriction placed by clause (a) of sub-section (1) of section 251 of the Act which obligates the Ld. CIT(A) to adjudicate the issue either by confirming or annulling the addition or reducing or enhancing the addition made by the assessing officer without the right to remand the matter back. However, while exercising the jurisdiction u/s 251(1)(a) of the Act, the Ld. CIT(A) is mandated to state point of determination, its decision thereon and clear reasons therefore in terms of section 250(6) of the Act. This exercise by the Ld. CIT(A) is a pre-requisite and invariably necessary for each assessment year in each case irrespective of its repetition. This is because in taxation each assessment year per-se is a separate unit as is governed by its own peculiar facts & features and as such the principle of res-judicata is inapplicable in fiscal laws. Therefore, any adjudication in taxation reaches finality utterly for the year of adjudication only and in no case, it does govern any later or subsequent year. This find fortified in ‘Radheshyam Satsang Vs CIT’ [1992, 193 ITR 321 (SC)], ‘AkzoNobel India Pvt. Ltd. Vs Addl CIT’ [2022, in ITA 370/2022, (Del)].
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Kapil Dev Tripathi Vs ACIT ITA No.231/LKW/2023 AY: 2016-17 6. It is a trite law as laid down by Hon’ble Supreme Court in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ reported in 8 SCC 266 (SC), that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’. Therefore, in our considered view, in the absence of clear authorisation in the statue permitting the Ld. NFAC to culminate proceedings without touching merits even in ex-parte proceedings is violative of provision of sub-section (6) of section 250 of the Act. In view hereof, we hold that, the impugned adjudication by the Ld. NFAC sidestepping the dictate is not in consonance with provision of s/s (6) of section 250 of the Act. For the reason, without commenting on merits of the case, we set aside the impugned order and remand the file to the Ld. NFAC with a direction to deal therewith de-novo after according two effective opportunities and pass a speaking order in terms of section 250(6) of the Act.
The appeal in result is ALLOWED FOR STATISTICAL PURPOSES. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Monday, 24th day of June, 2024
-S/d- -S/d- SUBHASH MALGURIA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; दिनाांक / Dated : 24th day of June, 2024 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT 5. DR, ITAT, Bench ‘A’, Pune 6. गार्डफ़ाइल / Guard File. आिेशानुसार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादिकरण, पुणे / ITAT, Lucknow
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