Radhey Shyam Arora v. Income Tax Officer, Ward 4(4), Jaipur, Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 18/2018 Radhey Shyam Arora S/o Late Manga Ranji Arora , R/o 5-LgfLower Ground Floor Nri Colony, Mandakni Greater Kailash-Iv,New Delhi ----Appellant Versus Income Tax Officer, Ward 4(4), Jaipur, Raj. ----Respondent For Appellant(s) : Mr. Suresh Sahni For Respondent(s): Mr. Prateek Kedawat for Mr. R.B. Mathur HON'BLE MR. JUSTICE KALPESH SATYENDRA JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 17/07/2018 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeal preferred by the assessee-appellantherein. 2.This Court while admitting the appeal framed the following substantial questions of law: “1. Whether the proceedings initiated u/s 148 ofthe Income Tax Act on the strength of theintimation received vide letter dated 25.04.2011from the ITO, Ward 6(1) Jaipur and dehors thesubjective satisfaction of the AO to the affect thatthere is reason to believe that the incomechargeable to the tax has escaped theassessment, is legally tenable? 2. Whether the initiation of ex-parte proceedingsdespite having the evidence to the affect that theassessee/appellant was duly pursuing the proceedings initiated against him, is legallyacceptable?” 3.The main contention of counsel for the appellant is that theappellant was not allowed to be represented before the AssessingOfficer which has rendered decision on 31[st] October, 2011,therefore, an affidavit of his friend was filed before the CIT (A) on13.10.2014 stating as under: I, Ram Narain S/o Late Shri Nathoo Lal Ji,resident of 10-A, Near Rajoria School,Hasanpura-C, Jaipur do hereby solemnly affirmas under: 1. That I retired as Dy. CIT in the year 2006. 2. That Shri Radhey Shyam Arora is a friend ofmine.mine. 3. That on 10[th] October, 2011, I received a callfrom him and he said that my wife is not well andI am also not well and hence I cannot come toJaipur to attend my Income Tax case, kindly takeadjournment. 4. I went to office of the ITO-4(4) alongwith anapplication for Adjournment on behalf of ShriR.S. Arora on 10.10.2011(sic) at about 12.10pm. 5. That I was informed by Smt. Mamta UDC/TA,posted in the ITO Ward 4(4) that the ITO andInspector are on examination duty. 6. I gave the application of adjournment to Smt.Mamta but she refused to give receipt thereof,but she assured that she will give application toITO. 3.1He further contended that inspite of observations made by CIT (A) which reads as under: "The assessee has given an affidavit of the saidfriend to the said effect. However, the questionstill remains as to why the assessee or hisrepresentative did not contact the AO seeking aproper adjournment." 4.Therefore, he contended that on adjournment application tendered by the applicant who has filed the affidavit, the CIT (A) ought to have remanded the matter back to the Assessing Officersince the decision was taken ex parte when the CIT as decided thematter on 22.6.2016. 5.We have heard the counsel for the parties. 5.1Vide order dated 6.3.2018 we have allowed the applicationfor taking on record the aforesaid affidavit. In that view of thematter, we are of the opinion that the matter is required to beremitted back to the AO to reconsider the matter after hearing theappellant. The appellant will appear before the AO on 27[th] August,2018. 6.The order of CIT (A) as well as the Tribunal are quashed andset aside. 7.Needless to observe that the AO will consider and decide thematter independently and impartially in accordance with lawwithout being influenced by any observations made by CIT (A) aswell as the Tribunal. 8.The appeal is accordingly allowed. (VIJAY KUMAR VYAS),J (K.S. JHAVERI),J Bmg/20