Mukeshkumar Bachubhai Patel, Ahmedabad V. The ITO, Ward-2(2)(3) , Ahmedabad

ITA 1157/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9381 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 11-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay; Competent authority; Set aside
• Section: 56(2)(vii)(b); 250

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER STAY APPLICATION NO. 108/AHD/2019 (IN ITA NO. 1157/AHD/2019) & ITA NO. 1157/AHD/2019 ASSESSMENT YEAR : 2014-15 MUKESHKUMAR BACHUBHAI PATEL, FLAT NO. 4, SONAL PARK SOCIETY, NARANPURA, AHMEDABAD V/S . THE INCOME TAX OFFICER, WARD (2)(2)(3) AHMEDABAD PAN NO. AKZPP 5531 C (APPLICANT) .. (RESPONDENT) ASSESSEE(S) BY : SHRI PARIN SHAH, AR REVENUE BY : SHRI VINOD TANWANI, SR DR / DATE OF HEARING : 13/09/2019 /DATE OF PRONOUNCEMENT : 23/09/2019 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT STAY APPLICATION IS DIRECTED AT THE INS TANCE OF THE ASSESSEE FOR THE STAY OF OUTSTANDING DEMAND AMOUNTING TO RS.2,04 ,47,127/- IN ASSESSMENT YEAR 2014-15. 2. WITH THE ASSISTANCE OF THE LEARNED REPRESENTATIV ES, WE HAVE GONE THROUGH THE RECORD CAREFULLY, AND, IT EMERGES OUT FROM THE RECORD THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 21.03.2016 DECLARING TOTAL INCOME AT RS.2,43,900/-. IT CAME TO THE NOTICE OF THE ASSESSING OFFICER THAT TH E ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY FOR CONSIDERATION OF RS.1,50,00, 000/-, BUT THE STAMP DUTY VALUATION AUTHORITY HAS VALUED THE PROPERTY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY AT RS.3,19,59,183/-. ARMED WITH THE ABO VE INFORMATION, LEARNED ASSESSING OFFICER PROCEEDED TO PASS THE ASSESSMENT ORDER AND WITH THE AID OF SECTION 56(2)(VII)(B) OF THE INCOME-TAX ACT, HE ASS ESSED THE TOTAL INCOME AT RS.3,22,03,080/- AS AGAINST THE RETURNED INCOME OF RS.2,43,900/-. THIS HAS GIVEN SP NO. 108/AHD/2019 & ITA NO.1157/AHD/ 2019 MUKESHKUMAR BACHUBHAI PATEL VS. ITO AY : 2014- 15 - 2 - RISE TO THE DEMAND WHICH IS SOUGHT TO BE STAYED BY VIRTUE OF PRESENT STAY APPLICATION. 3. ON PERUSAL OF THE ORDER OF CIT(A), IT REVEALED T HAT THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE FOR WANT OF PROSECUTION AND THERE IS NO ADJUDICATION OF ISSUES ON MERITS AT THE END OF THE LEARNED FIRST APPELLATE AUTHORITY. WE HAVE CONFRONTED TO BOTH THE LEARNED REPRESENTATIVES AS TO WHY THE APPEAL ITSELF SHOULD NOT BE HEARD ALONGWITH THIS ST AY APPLICATION, BECAUSE THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS A NON-SPEAK ING ONE. BOTH THE LEARNED REPRESENTATIVES AGREED FOR DISPOSAL OF THE APPEAL I TSELF. 4. LEARNED CIT(A) HAS NOTICED THAT THE APPEAL OF T HE ASSESSEE WAS LISTED ON FIVE OCCASIONS AND THE NOTICE INTIMATING THE DATE O F HEARING WAS DULY ISSUED AND SERVED UPON THE ASSESSEE. INSPITE OF GIVING FIVE O PPORTUNITIES, THE ASSESSEE DID NOT COMPLY WITH THE NOTICES AND, THEREFORE, UNDER T HE COMPELLING CIRCUMSTANCES, LEARNED CIT(A) HAS DISMISSED THE APPEAL. THE STAND OF THE ASSESSEE, ON THE OTHER HAND, IS THAT JURISDICTION OVER HIM HAS BEEN CHANGE D FROM SURAT TO AHMEDABAD, AND, THEREFORE, HE REQUESTED THE CIT(A) TO TRANSFER THE APPEAL TO THE COMPETENT AUTHORITY AT AHMEDABAD. THE LEARNED CIT(A) HAS NOT INTIMATED THAT HIS APPEAL WOULD NOT BE TRANSFERRED AND IT WOULD BE DECIDED ON MERITS BY THE LEARNED FIRST APPELLATE AUTHORITY AT SURAT. ON ACCOUNT OF THIS M ISCONCEPTION, HE COULD NOT PROSECUTE THE APPEAL. 5. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIRC UMSTANCES, WE FIND THAT SUB-CLAUSE (6) OF SECTION 250 CONTEMPLATES THAT LEA RNED FIRST APPELLATE AUTHORITY WOULD STATE THE POINTS IN DISPUTE AND THEREAFTER RE CORD REASONS ON THOSE POINTS. THE DEMAND OF MORE THAN RS.2.14 CRORES HAS BEEN CON FIRMED AGAINST THE ASSESSEE BY MERELY DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION. THIS ORDER IS NOT IN CONSONANCE WITH THE MANDATE GIVEN U NDER SECTION 250(6) OF THE SP NO. 108/AHD/2019 & ITA NO.1157/AHD/ 2019 MUKESHKUMAR BACHUBHAI PATEL VS. ITO AY : 2014- 15 - 3 - ACT. THEREFORE, THE IMPUGNED ORDER IS NOT SUSTAINA BLE. WE, ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED FIRS T APPELLATE AUTHORITY AND REMIT ALL THE ISSUES TO THE FILE OF LEARNED CIT(A) FOR FRESH ADJUDICATION. SINCE WE HAVE DISPOSED OF THE APPEAL ITSELF, THEREFORE, THE STAY APPLICATION FILED BY THE ASSESSEE WOULD BECOME INFRUCTUOUS OR REDUNDANT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THE STAY APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 23 RD SEPTEMBER, 2019 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD, DATED 23/09/2019 *BT, SRPS ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $ '' , , / DR, ITAT, AHMEDABAD 6. - / GUARD FILE. / BY ORDER, TRUE COPY / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION- ..13.09.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.09.2019.. OTHER MEMBER 23 .09.2019 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.-. 23.09.2019 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 23.09.2019.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK23. 09.2019.. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 8. DATE OF DESPATCH OF THE ORDER