Dilip Chimanlal Shah, Surat V. DCIT, Circle -1(3), Surat

ITA 107/SRT/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8313 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: YOGESH GAMIT
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM ./ITA NO.107/SRT/2018 ( [ [ / ASSESSMENT YEAR: (2008-09) (VIRTUAL COURT HEARING) DILIP CHIMANLAL SHAH, 602, OLYMPIC TOWER, B/H UMRA POLICE CHOWKI, ATHWALINES, SURAT 395007. V S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(3), SURAT. ./ ./ PAN/GIR NO.: AHPPS 8236 E (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI YOGESH GAMIT - AR RESPONDENT BY : MS. ANUPAMA SINGLA SR.DR / DATE OF HEARING : 03/08/2021 /DATE OF PRONOUNCEMENT : 03/08/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2007-08, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-2, SURAT DATED 22.12.2017, WHICH IN TURN ARISES OUT OF ASSESSMENT ORDER PASSED BY THE LD.ASSESSING OFFICER, UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 DATED 31.03.2016. 2. AT THE OUTSET ITSELF, SHRI YOGESH GAMIT, LD.COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE THE LD.COMMISSIONER OF INCOME TAX(APPEALS) [LD.CIT(A)] AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD.COUNSEL SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS, ASSESSEE HAS NOT RECEIVED NOTICE FROM THE LD.CIT(A), THEREFORE HE COULD NOT ATTEND THE PROCEEDINGS BEFORE THE LD.CIT(A). THE LD.COUNSEL TOOK US THROUGH THE ORDER OF THE LD.CIT(A), VIDE PARA NO.5.1.1 AT PAGE NO.2 WHEREIN THE LD.CIT(A) HAS MENTIONED PAGE | 2 ITA NO.107/SRT/2018 FOR A.Y. 2007-08 DILIP CHIMANLAL SHAH, SURAT THAT ASSESSEE WAS GIVEN OPPORTUNITIES ON 29.08.2017, 30.11.2017 AND 21.12.2017. THESE NOTICES INCLUDING FINAL SHOW CAUSE NOTICE WERE ISSUED ON THE ADDRESS GIVEN BY THE ASSESSEE IN APPEAL MEMO [FORM NO.35]. HOWEVER, THESE NOTICES WERE NOT SERVED ON THE ASSESSEE. IT IS NOT MENTIONED IN THE APPELLATE ORDER THAT THESE THREE(03) NOTICES WERE SERVED OR NOT. THE LD.COUNSEL SUBMITS THAT IN FACT THESE NOTICES HAVE NOT BEEN SERVED ON THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT ATTEND THE APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), HENCE, THE LD.COUNSEL CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD.FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 3. ON THE OTHER HAND, THE LD.DEPARTMENTAL REPRESENTATIVE (SR.DR) FOR THE REVENUE HAS FAIRLY AGREED THAT ORDER PASSED BY THE LD.CIT(A) IS AN EX-PARTE ORDER WITHOUT ADJUDICATING THE ISSUES INVOLVED, ON MERITS. THEREFORE, THE APPEAL MAY BE REMITTED BACK TO THE FILE OF THE LD.CIT(A) FOR DENOVO ADJUDICATION. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 AND THE IMPUGNED ORDER PASSED BY THE LD.CIT(A), IS AN EX-PARTE ORDER AND NON-SPEAKING ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. WE NOTE THAT ORDER PASSED BY THE LD.CIT(A) IS NOT IN ACCORDANCE OF THE MANDATE OF THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, 1961 WHICH READS AS FOLLOWS THE ORDER OF LD.COMMISSIONER OF INCOME TAX (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINT FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION . 5. WE NOTE THAT DURING THE APPELLATE PROCEEDINGS, NOTICE OF HEARING WERE NOT SERVED ON THE ASSESSEE, THEREFORE, THE ASSESSEE HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD.CIT(A). WE NOTE THAT LD.CIT(A) DID NOT DISCUSS THE ASSESSEES CASE ON MERITS BASED ON THE MATERIAL AVAILABLE BEFORE HIM, HENCE, IT IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. PAGE | 3 ITA NO.107/SRT/2018 FOR A.Y. 2007-08 DILIP CHIMANLAL SHAH, SURAT WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLE OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER IN THE MERITS OF THE CASE, IN THE INTEREST OF THE JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DENOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER ACCORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET-ASIDE THE BEFORE THE LD.CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A), TO ADJUDICATE THE ISSUE ON MERITS. FOR STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED AT THE TIME OF HEARING OF APPEAL ON 03/08/2021 IN THE VIRTUAL COURT OF HEARING. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT / / DATE: 03/08/2021 / SGR COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT