Shri Bhupendra K. Ribadia, Surat V. The Dy.CIT.,Circle-9, Surat

ITA 1153/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5963 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANITA SURESH HARDASANI
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH (SMC), AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.1153/AHD/2013 ( / ASSESSMENT YEAR : 2008-09) BHUPENDRA K.RIBADIA 11, KOHINOOR SOCIETY VARACHHA ROAD SURAT 395 003 / VS. THE DY.CIT CIRCLE-9 SURAT $ ./ ./ PAN/GIR NO. : AALPR 2496 N ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI M.K. PATEL, AR ($'*) / RESPONDENT BY : SMT. ANITA SURESH HARDASANI, SR.DR +,*- / DATE OF HEARING 28/04/2017 ./0*- / DATE OF PRONOUNCEMENT 04/ 05/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-V, SURAT [CIT(A) IN SHORT] DATED 01/02/2013 FOR THE ASSESSMENT YEAR (AY) 2008-09. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE R EAD AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME ITA NO. 1153/AH D/2013 BHUPENDRA K. RIBADIA VS.DCIT ASST.YEAR 2008-09 - 2 - TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN ISSUING NOTICE U/S.148 OF THE ACT AND REOPENING THE ASSESSMENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.15,903,675/- ON AC COUNT OF ALLEGED SHORT TERM CAPITAL GAIN. 3. THE ASSESSEE HAS RAISED VARIOUS GROUNDS CHALLENG ING THE ADDITIONS OF RS.15,93,675/- ON ACCOUNT OF ALLEGED SHORT TERM CAPITAL GAIN (STCG) AS WELL AS QUESTIONED THE ISSUANCE OF NOTICE UNDER S.148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT'). IN THE COURSE OF HEARING, THE LD.AR FOR THE ASSESSEE ADDED THAT THE ORDER OF THE CIT(A) APPEALED AGAINST IS AN EX-PARTE ORDER IN THE ABSENCE OF THE ASSESSEE. THE LD.AR POINTED OUT THAT THE ASSESSEE IN PURSUANCE OF NOTICE FOR HEARING BEFORE THE CIT(A), MOVED WRITTEN APPLIC ATION SEEKING ADJOURNMENT. THEREFORE, NOTICES OF THE CIT(A) WERE DULY RESPONDED EXCEPT ON ONE OCCASIONWHERE THE ASSESSEE UNFORTUNAT ELY COULD NOT EITHER APPEAR OR SOUGHT ADJOURNMENT AS HE WAS UNWELL. VID E LETTER DATED 27/02/2012, A REQUEST FOR CONDONATION OF DELAY FOR FILING THE APPEAL BEFORE THE CIT(A) WAS ALSO MOVED. THE LD.AR POIN TED OUT THAT THE DELAY WAS ON ACCOUNT OF THE ABSENCE OF THE ASSESSEE AS HE WAS TRAVELLING AT THE RELEVANT TIME. ITA NO. 1153/AH D/2013 BHUPENDRA K. RIBADIA VS.DCIT ASST.YEAR 2008-09 - 3 - 4. THE CIT(A) HOWEVER DID NOT VIEW THE PLEA OF THE ASSESSEE WITH FAVOUR AND DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DELAY IN FILING THE APPEAL BEFORE THE CIT(A). 5. ON OBJECTIVE READING OF THE ORDER OF THE CIT(A) , WE FIND THE REFUSAL TO CONDONE THE DELAY IN FILING, MERITS RECONSIDERATION . WE FIND THAT BY DELAY OF ABOUT 4 MONTHS ON THE PART OF THE ASSESSEE TO FILE THE APPEAL BEFORE THE CIT(A), NO GRAVE PREJUDICE PER SE HAS BEEN CAUSED TO THE REVENUE. THE ACTION OF BELATED FILING OF APPEAL B EFORE THE CIT(A) IS, IN FACT, DETRIMENTAL TO THE INTEREST OF THE ASSESSEE A ND NOT OTHERWISE. THE ASSESSEE HAS GIVEN AN EXPLANATION WHICH HAS NOT BEE N VERIFIED OWING TO NON-REPRESENTATION. THE MERITS OF THE CASE HAS NOT BEEN EXAMINED AS THE APPEAL HAS BEEN REJECTED AT THE THRESHOLD OWING TO BELATED FILING BEYOND LIMITATION PERIOD. IN THE CIRCUMSTANCES, WE FIND T HAT IT WILL BE IN FITNESS OF THINGS TO GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO ADVANCE THE CAUSE OF NATURAL JUSTICE. THE ORDER OF THE CIT(A) IS SET ASIDE AND REMITTED BACK FOR DE NOVO CONSIDERATION OF ALL THE ISSUES INVOLVED IN THE APPEAL INCLUDING THE CASE MADE OUT FOR ADMISSIO N OF BELATED APPEAL. ACCORDINGLY, ALL THE ISSUES CONCERNING THE APPEAL A RE KEPT OPEN AND RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH CONSI DERATION. ITA NO. 1153/AH D/2013 BHUPENDRA K. RIBADIA VS.DCIT ASST.YEAR 2008-09 - 4 - 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 04/ 05/2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 04/ 05 /2017 4..+,.+../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-V, SURAT 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 1.5.17 (DICTATION-PAD 6-P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2.5.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.4.5.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 4.5.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER