Deep Industries Limited, Ahmedabad V. The ACIT., Circle-1, Ahmedabad

ITA 1152/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8929 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-03-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 16-03-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA SRDR
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.1152/AHD/2007 ASSESSMENT YEAR:2001-02 DATE OF HEARING:8.3.10 DRAFTED:8.3.10 DEEP INDUSTRTIES LIMITED, OPP. SURYANARAYAN BUNGALOWS, SABARMATI KALOL STATE HIGHW4AY MOTERA, SABARMATI, AHMEDABAD -380005 PAN NO.AAACD6915E V/S . ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE-1, AHMEDABAD 3 RD FLOOR, JITENDRA CHAMBERS, ASHRAM ROAD, AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S.N.DIVATIA, AR RESPONDENT BY:- SHRI C.K.MISHRA, SR-DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, AHMEDABAD IN APPEAL NO. CIT (A)V/ACIT CIR.1/104/2006-07 DATED 26-12-2006. THE ASSESSMENT WAS FRAMED BY THE ITO WARD-1(4), AHMEDABAD U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 24-02-2004 FOR ASSESSMENT YEAR 2001-02. THE PENALTY UNDER DISPUTE WAS LEVIED U/S.271(1)(C) OF THE ACT BY ACIT CIRCLE- 1, AHMEDABAD VIDE HIS ORDER DATED 20-03-2006. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE LEVIED PENALTY U/S.271(1) OF THE ACT BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A). FOR THIS, ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.1 TO 3 :- 1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FATS IN CONFIRMING THE ACTION OF AO IN ADDING RS.64890/- AS INCOME-TAX PENALTY TO TH E APPELLANT. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. C.I.T.(A) OUGHT NOT TO HAVE CONSIDER THE DELAY IN FILING OF C.I.T. APPEAL LATE BY SEVEN DAYS. ITA NO.1152/AHD/2007 A.Y. 2001-02 DEEP INDUSTRIES LTD. V. ACIT, CIR-1, ABD PAGE 2 SINCE THE TIME OF FILING THE APPEAL IS TO BE CALCUL ATED FROM THE DATE OF RECEIPT OF THE ORDER. ACCORDINGLY THERE IS NO DELAY IN FILI NG OF APPEAL. 3. ON 22-12-2006 THE REPRESENTATIVE CHARTERED ACCOU NTANT HAD ATTENDED THE OFFICE OF THE C.I.T. IN POST LUNCH SESSION. HOWEVER LD. C.I.T. WAS NOT AVAILABLE. THE REQUEST LETTER WAS HANDED OVER TO TH E STENO-TYPIST TO GRANT THE ADJOURNMENT AND FIX THE DATE IN JAN.2007, SINCE C.A . WAS OUT OF AHMEDABAD FROM 25-12-2006 TO 28-12-2006. HOWEVER SURPRISINGLY WITHOUT GIVING OPPORTUNITY THE ORDER IS PASSED BY THE C./I.T. WHIC H IS BAD IN LAW. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THE QUANTUM APPEAL HAS BEEN SET ASIDE VIDE TRIBUNALS ORDER IN ITA NO.331/AHD/2005 DATED 07-11-2008, THE PENALTY ON WHICH HAS BEEN LEVIED, BY HOLDING AS UNDER:- 7.1 AFTER GOING THROUGH THE AFORESAID CONTRADICTOR Y FINDINGS OF THE CIT (APPEALS), WE ARE OF THE VIEW THAT DISALLOWANCE OF THE EXPENDITURE UNDER REFERENCE CANNOT BE UPHELD AND REQUIRES RE-CONSIDER ATION AT THE END OF CIT (APPEALS). CONSEQUENTLY, WE RESTORE THE ISSUE INVOL VED IN THIS APPEAL BACK TO THE FILE OF CIT (APPEALS) WITH THE DIRECTIONS THAT THE SAME MAY BE DECIDED AFRESH IN ACCORDANCE WITH LAW BY PASSING A SPEAKING ORDER. THE ASSESSEE WILL BE ALLOWED A PROPER OPPORTUNITY OF BEING HEARD. AS THE MATTER IN QUANTUM APPEAL HAS BEEN SET ASIDE TO THE FILE OF CIT(A), WE DELETE THE PENALTY BUT DIRECT THE ASSESSING OFFICER TO LEV Y THE PENALTY, IN CASE THE QUANTUM ADDITIONS ARE UPHELD IN APPELLATE PROCEEDINGS AND T HE CIRCUMSTANCES SO WARRANTS. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08/03/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 08/03/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- V, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD