Rajkot Lodhika Sahakari Kharid Vechan Sangh Ltd., RAJKOT-GUJARAT V. The Asstt. Commr. Income Tax, Circle-2, RAJKOT-GUJARAT

ITA 11/RJT/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0443 (ITAT-RAJKOT)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-12-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHAKRAVARTY
• Assessee Lawyers: ASHA D VYAS
• Keywords: Opportunity of being heard; Reasonable cause; Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BEN CH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHAR AT, J.M.) I.T. A. NO. 11/RJT/2015 (ASSESSMENT YEAR: 2009-10) RAJKOT LODHIKA SAHAKARI KHARID VECHAN SANGH LTD. A.D. VYAS & CO., CHARTERED ACCOUNTANT, KOTECHANAGAR MAIN ROAD, OPP. KOTECHA GIRLS HIGH SCHOOL, ABOVE PATIDAR MANDAP SERVICE, RAJKOT V/S THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-II, RAJKOT (APPELLANT) (RESPONDENT) PAN: AAAAR0531J APPELLANT BY : ASHA D. VYAS, C.A. RESPONDENT BY : V. K. CHAKRAVARTY, D.R. ( )/ ORDER DATE OF HEARING : 28-12-2015 DATE OF PRONOUNCEMENT : 30 -12-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-III, RAJKOT DATED 10.11.2014 FOR A.Y. 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. ITA NO 11/RJT/2015 . A.Y. 2009-10 2 3. ASSESSEE IS CO-OPERATIVE SOCIETY AND IS ENGAGED IN ACTIVITY OF SUPPLYING FERTILIZERS, SEEDS AND OTHER AGRICULTURAL EQUIPMENT S TO SMALL CO-OP. SOCIETY MEMBERS. ASSESSEE FILED HIS RETURN OF INCOME FOR A. Y. 2009-10 ON 24.09.2009 DECLARING TOTAL INCOME AT RS. 27,62,490/ -. THE REVISED RETURN WAS FILED BY ASSESSEE ON 09.10.2009 DECLARING SAME TOTAL INCOME. THE RETURN WAS ACCOMPANIED BY AUDIT REPORT U/S.44AB ALO NGWITH AUDITED ACCOUNTS. THE CASE WAS SELECTED FOR SCRUTINY AND T HEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 26 .12.2011 AND THE TOTAL INCOME WAS DETERMINED AT RS. 50,30,890/-. AGGRIEVE D BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO V IDE ORDER DATED 10.11.2014 DISMISSED THE APPEAL OF THE ASSESSEE. AG GRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEF ORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1.0 THE COMMISSIONER OF INCOME TAX APPEALS III RAJ KOT (HEREINAFTER CALLED CIT ) HAS GRIEVOUSLY ERRED IN DISMISSING ALL THE GROUNDS OF A PPEAL WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LEARNE D CIT OUGHT TO HAVE CONSIDERED THAT THE AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE WAS CHANGED AND NOTICES WERE SERVED TO THE PREVIOUS AUTHORIZED REPR ESENTATIVE ONLY. 2.0 THE LEARNED CIT HAS GRIEVOUSLY ERRED IN CONFIRM ING THE ADDITION OF RS.340887/- MADE BY THE ASSISTANT COMMISSIONER OF INCOME TAX RA NGE II, RAJKOT (HEREINAFTER CALLED THE AO). HONOURABLE CIT OUGHT TO HAVE CONSI DERED THE FACT THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80P AND ADDITION IS C OVERED UNDER THE SAID DEDUCTION. 3.0 THE LEARNED CIT HAS GRIEVOUSLY ERRED IN CONFIRM ING THE ADDITION OF RS.84416/- MADE BY THE AO. HONOURABLE CIT OUGHT TO HAVE CONSI DERED THE FACT THAT CAR IS DEPRECIABLE ASSET AND PROFIT & LOSS INCURRED ON IT IS NOT CHARGEABLE TO TAX BUT THE SALE CONSIDERATION RECEIVED IS TO BE DEDUCTED FROM THE BLOCK OF ASSETS. 4.0 THE LEARNED CIT FURTHER ERRED IN CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER AMOUNTING TO RS.1843095/- REGARDING INCOME RECEIVED FROM MOTHER DAIRY FRUITS & VEGETABLE PVT LTD AND DHARA VEGETABLE OIL AND FOODS COMPANY LTD. THE INCOME ADDED BY THE LEARNED ASSESSING OFFICER I S STORAGE INCOME ELIGIBLE FOR DEDUCTION U/S80P, INSTEAD THE SAME WAS CONSIDERED A S TAXABLE CONTRACT INCOME. 5.0 THE LEARNED AO HAS NOT ERRED IN NOT CALCULATING THE DEDUCTION ALLOWABLE U/S80P IN RIGHT MANNER. ITA NO 11/RJT/2015 . A.Y. 2009-10 3 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT L D. CIT(A) HAS PASSED AN EX- PARTE ORDER. SHE SUBMITTED THAT THE NOTICE WAS SER VED TO THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WHO WAS CHANGED BY T HE ASSESSEE AND WAS NOT SERVED TO THE NEW AUTHORIZED REPRESENTATIVE. SHE, THEREFORE, SUBMITTED THAT THERE WAS A GENUINE AND REASONABLE CAUSE FOR NOT AT TENDING THE HEARING BEFORE LD. CIT(A) AND THAT THE ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT(A) AND FURTHER SUBM ITTED THAT ASSESSEE WILL FULLY CO-OPERATE AND APPEAR BEFORE LD. CIT(A). THE LD. D.R. ON THE OTHER HAND OPPOSED THE PRAYER OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, WE FIND THAT LD. CIT(A) HAS PA SSED AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GO ING INTO THE MERITS OF THE ISSUE BEFORE HIM. IT IS A SETTLED LAW THAT LD. CIT(A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX PARTE ORDER THE LD. CIT(A) SHOULD HAVE DECIDED THE GROUNDS OF APPEAL OF THE ASSESSEE ON ME RITS THEREOF. CONSIDERING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ASSESSEE BE GIVEN ONE MO RE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT(A). WE THEREFORE RE MIT THE ISSUE BACK TO LD. CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CIT(A) SHALL GRANT ADEQUATE OPPORTUN ITY OF HEARING TO BOTH THE PARTIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD. CIT(A), WE ARE NOT ADJUDICATING ON MERITS THE OTHER GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS THE GROUND OF ASSESSEE IS ALLOWE D. ITA NO 11/RJT/2015 . A.Y. 2009-10 4 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 30/12/2015 SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 30/12/2015 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR