Meena Devjibhai Tandel, Nani Daman V. The Income tax Officer,Vapi Ward-4, Daman

ITA 1112/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1605 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Business income
• Section: 143(3)

Judgement Text

IT A NO.111 2 /AHD/2013 A.Y . 2008 - 09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI S.S. GODARA , JUDICIAL MEMBER I TA NO. 111 2 /AHD /201 3 ASSESSMENT YEAR: 200 8 - 09 MEENA DEVJIBHAI TANDEL, VS. INCOME TAX OFFICER, EKTA APARTMENT, VAPI WARD - 4, DAMAN. SARVODAYA SOCIETY, TEN BATTI, NANI DAMAN 396 210. [PAN AARPT 2901 L ] (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI M.K. PATEL , A.R RESPONDENT BY : S HRI ALPESH PARMAR , SR. D.R. DATE OF HEARING : 2 8 .04 . 20 16 DATE OF PRONOUNCEMENT : 03.05 .2016 O R D E R PER ANIL CHATURVEDI, A .M. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LEARNED CIT ( A ), VALSAD DATED 15 . 01 .201 3 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE RELEV ANT FACTS AS CULLED OUT F R OM THE MA TERIALS ON RECORD ARE AS UNDER : - 3. THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM RENT, PARTNERSHIP IN THE FIRM AND BUSINESS INCOME FROM PROPRIETARY CONCERN. THE ASSESSEE HAS ELECTRONICALLY FILED HER RETURN OF INCOME F OR ASSESSMENT YEAR 2008 - 09 ON 09.06.2009 DECLARING TOTAL INCOME OF RS.3,27,776/ - THE CASE W AS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT W A S FRAMED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT ) VIDE ORDER DATE D 24 .12.201 0 AND THE TOTAL INCOME WAS DETERMINED AT RS. 17,08,870/ - . AGGRIEVED BY THE ORDER OF THE IT A NO.111 2 /AHD/2013 A.Y . 2008 - 09 PAGE 2 OF 4 A SSESSING OFFICER ASSESSEE CARRIED THE MATTER BEFORE TH E LEARNED CIT(A) WHO HAVE VI D E O RDER DAT ED 15.01.2013 IN A PPAL N O .CIT(A)/VLS/ 195 /1 0 - 11 D ISMISSED THE APPEAL OF THE ASS ESSEE. AGGRIEVED BY T HE ORDER OF L EARNED C IT ( A ) THE ASSESSEE IS IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : - 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (A PPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RE JECTING CLAIM OF THE ASSESSEE REGARDING THE PROPERTY SOLD WAS SITUATED IN RURAL AREA AND RS.13,81,090/ - AS ALLEGED INCOME FROM SHORT TERM CAPITAL GAIN. 2 . IT IS THEREFORE PRAYED T HAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 4. AT THE OUTSET, LD. A.R SUBMITTED THAT LD. CIT(A) HAS PASSED AN EX - PARTE ORDER AND ASSESSEE WAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING BEFORE PASS ING THE EX - PARTE ORDER. HE , THEREFORE , SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO LD. CIT(A) FOR DECIDING THE ISSUE ON MERITS AND FURTHER SUBMITTED THAT ASSESSEE WOULD CO - OPERATE BEFORE LD. CIT(A). THE L EARNED DEPARTMENTAL REPRESENTATIVE, ON THE OT HER HAND , OBJECTED TO THE REQUEST MADE BY L EARNED AUTHORISED REPRESENTATIVE TO REMIT THE ISSUE BACK TO THE FILE OF L EARNED CIT(A) AND FURTHER PRAYED THAT IF THE MATTER IS RESTORED TO THE LOWER AUTHORITIES, COST SHOULD BE LEVIED ON ASSESSEE SO THAT IN FUTUR E S HE WILL APPEAR BEFORE THE REVENUE AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE PRESENT CASE WHILE DISMISSING THE APPEAL, L EARNED CIT(A) HAS NOTED THAT THE ASSESSEE DID NOT APPEAR BEFORE HI M ON VARIOUS OCCASIONS AND HE THEREAFTER PROCEEDED TO PASS THE ORDER. WE FURTHER FIND THAT THE ORDER PASSED IS NOT A SPEAKING ORDER. WE ARE OF THE VIEW THAT EVEN IN AN EX - PARTE ORDER, THE IT A NO.111 2 /AHD/2013 A.Y . 2008 - 09 PAGE 3 OF 4 L EARNED CIT(A) SHOULD HAVE DECIDED THE GROUND OF APPEAL OF THE ASSE SSEE ON MERITS THEREOF. WE ALSO FIND THAT ASSESSEE HAS NOT PLACED ANY MATERIAL ON RECORD TO JUSTIFY HIS ACTION OF NOT APPEARING BEFORE L EARNED CIT(A). WE ARE OF THE VIEW THAT THE APATHY OF THE ASSESSEE TOWARDS THE PROCEEDINGS BEFORE THE LOWER AUTHORITIES SHOULD NOT BE ENCOURAGED. CONSIDERING THE AFORESAID FACTS AND IN VIEW OF SUBMISSION OF L EARNED AUTHORISED REPRESENTATIVE THAT ASSESSEE WILL APPEAR BEFORE L EARNED CIT(A), WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GIVEN ONE MORE OP PORTUNITY TO PRESENT H ER CASE BEFORE L EARNED CIT(A) BUT ONLY AFTER PAYMENT OF COST OF RUPEES FIVE THOUSAND (RS.5000/ - ) WHICH SHE SHALL DEPOSIT TOWARDS L EGAL A ID AND THE PROOF OF WHICH WILL BE PRESENTED BEFORE L EARNED CIT(A). THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LEARNED CIT(A) WITHIN ONE MONTH FROM THE PASSING OF ORDER AND SEEK THE DATE OF HEARING. THEREAFTER , L EARNED CIT(A) IS DIRECTED TO DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH LAW AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARIN G TO BOTH THE PARTIES. THUS, THE GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( THIS ORDER P RONOUNCED IN THE OPEN COURT TODAY ON TH E 3 RD DAY OF MAY , 201 6 . ) SD/ - SD/ - S.S. GODARA ANIL CHATURVEDI ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) AHMEDABAD, THE 3 RD DAY OF MAY , 2016 PBN/* IT A NO.111 2 /AHD/2013 A.Y . 2008 - 09 PAGE 4 OF 4 COPIES TO: (1) THE APPELLANT ( 2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD