Smt. Manali Sanjeev Birla, Surat V. The Income tax Officer,Ward-3(3), Surat

ITA 1208/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80564 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 18-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 25-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. ITA.NO.1208/AHD/2011 (ASSESSMENT YEAR:2006-07) SMT. MANALI SANJEEV BIRLA A-57, KESAVNAGAR SOCIETY, NEAR UMRA SCHOOL, ICHCHANATH, SURAT. APPELLANT VS. ITO, WARD-3(3), SURAT-395001 RESPONDENT PAN: ABOPB8796P /BY APPELLANT : SHRI M. K. PATEL, A.R. /BY RESPONDENT : SHRI ROOP CHAND, SR.D.R. !' /DATE OF HEARING : 18.12.2014 #$% !' /DATE OF PRONOUNCEMENT : 22.12.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, S URAT, DATED 14.02.2011 FOR A.Y. 2006-07 ON THE FOLLOWING GROUND S: [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED A.O. OUGHT TO HAVE GIVEN PROPER OPPORTUNITY OF BEING HEARD IN RESPECT OF I.T.A. NO. 1208/AHD/2011 A.Y. 2006-07 (SMT. MANALI SANJEEV BIRLA VS. ITO) PAGE 2 VERIFICATION OF REIMBURSEMENT OF EXPENSES INCURRED ON CLEARING AND FORWARDING EXPENSES ON THE BASIS OF DETECTIONS GIVEN BY THE LEARNED CIT-(A)-II, SURAT. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT (A) -II , SURAT WITHOUT. APPLICATION OF MIND AND VERIFICATION OF RE CORDS PASSED THE APPELLATE ORDER DATED 10-12-2010 AND THE N RECTIFIED THE MISTAKE BY PASSING ORDER U/S.154 OF T HE ACT WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE AP PELLANT . [3] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT (A) -II , SURAT OUGHT TO HAVE RELIED ON THE AFFIDAVIT OF THE A.R. A ND ACCEPTED THE CONTENTION OF THE A.R. 2. ASSESSEE IS ENGAGED IN BUSINESS OF TRADING AND COMMISSION AGENT. THE ORIGINAL ASSESSMENT U/S. 143 (3) WAS PASSED ON 23.12.2008. 3. MATTER WAS CARRIED BEFORE THE CIT(A)-II, SURAT, WHO VIDE ORDER DATED 28.10.2009 SET ASIDE THE MATTER TO ASSE SSING OFFICER. IN SETTING ASIDE PROCEEDING, NOTICE OF TH E ASSESSING OFFICER DATED 15.12.2009 WAS ISSUED FOR 04.01.2010. LD. AUTHORIZED REPRESENTATIVE ATTENDED ON BEHALF OF ASS ESSEE BUT ASSESSING OFFICER WAS ABSENT ON THE SAID DATE. THI S FACT HAS BEEN DEPOSED BY LD. AUTHORIZED REPRESENTATIVE BY WA Y OF AFFIDAVIT. IN SPITE OF THAT EFFECT GIVING ORDER OF ASSESSING OFFICER WAS PASSED ON 21.10.2010 AGAINST WHICH APPEAL WAS F ILED ON 01.02.2010. ASSESSEE MADE SUBMISSION BEFORE CIT(A) VIDE ITS LETTER DATED 05.10.2010. HOWEVER, CIT(A) PASSED TH E ORDER BY OBSERVING AS UNDER: 8.1 I HAVE DULY CONSIDERED THE ABOVE SUBMISSION OF THE APPELLANT, AND FIND THAT THE APPELLANT HAS NOT FURN ISHED ANY I.T.A. NO. 1208/AHD/2011 A.Y. 2006-07 (SMT. MANALI SANJEEV BIRLA VS. ITO) PAGE 3 EVIDENCE TO SHOW THAT THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT HAD DISCUSSION WITH THE INSPECTOR OF THE ASSESSING OFFICER ON 04.01.2010 AND HE WAITED TILL 12.30 P.M ON THE SAID DATE TO FINALIZE THE MATTER. THOUGH THE APPELL ANT HAS FILED AN AFFIDAVIT BEFORE THIS OFFICE ALONGWITH THE WRITTEN SUBMISSION IN THIS REGARD, HOWEVER, NO EVIDENCE HAS BEEN FILED TO SHOW THAT THE APPELLANT FILED ANY SUCH AFF IDAVIT BEFORE THE ASSESSING OFFICER OR ANY LETTER IN THE O FFICE OF THE ASSESSING OFFICER THAT HE HAD APPEARED ON 04.01.201 0. THE APPELLANT HAS ALSO MENTIONED THAT SERVICE CHARGES I NVOICES HAVE BEEN RAISED BY THE PARTIES, NAMELY RIDDHI ENTE RPRISES AND OMKAR ENTERPRISES AND FOR REIMBURSEMENT OF EXPE NSES DEBIT NOTES HAVE BEEN RAISED BY THE SAME PARTIES, H OWEVER, HE HAS NOT PRODUCED ANY EVIDENCE BEFORE THIS OFFICE IN SUPPORT OF SUCH CLAIM. I, THEREFORE, IN THE ABSENCE OF ANY EVIDENCES FURNISHED BY THE APPELLANT IN SUPPORT OF THE ABOVE CLAIM ALSO DO NOT FIND PROPER TO REMAND THE MATTER TO THE ASSESSING OFFICER. 8.2. IN VIEW OF THE ABOVE, I HOLD THAT THE APPELLAN T HAS NOT BEEN ABLE TO JUSTIFY THE REIMBURSEMENT OF EXPENSES TO THE EXTENT OF RS. 8,53,277/-. THE TWO GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE, THEREFORE, DISMISSED. 4. SAME HAS BEEN OPPOSED BEFORE US, INTER ALIA, SUB MITTING THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN PASSING EX PARTE ORDER IN SPITE OF THE FACT THAT LD. AUTHORIZED REPR ESENTATIVE OF ASSESSEE CONTENDED BEFORE CONCERNED ASSESSING OFFIC ER ON DATE FIXED AND WHICH WAS NOT JUSTIFIED. CIT(A) HAS ALSO UPHELD THE EX PARTE ORDER OF ASSESSING OFFICER IN SPITE OF FAC T THAT LD. AUTHORIZED REPRESENTATIVE OF ASSESSEE HAS DEPOSED T HE FACT AS DISCUSSED ABOVE. AS FAR AS HIS EFFORT OF ATTENDING PROCEEDING BEFORE ASSESSING OFFICER, THE WHOLE SEQUENCE OF EVE NTS SHOWS THAT LD. AUTHORIZED REPRESENTATIVE WAS PRESENT ON T HE DATE FIXED BEFORE ASSESSING OFFICER ON 04.01.2010 AND AS SESSING OFFICER WAS ABSENT ON THAT DATE AND ORDER WAS PASSE D ON 21.10.2010 WITHOUT GIVING DUE OPPORTUNITY OF HEARIN G TO THE I.T.A. NO. 1208/AHD/2011 A.Y. 2006-07 (SMT. MANALI SANJEEV BIRLA VS. ITO) PAGE 4 ASSESSEE, WHICH IS NOT JUSTIFIED. OPPORTUNITY OF H EARING IS ESSENCE OF PRINCIPLE OF NATURAL JUSTICE, WHICH HAS BEEN VIOLATED IN THIS CASE. SO, IN THE INTEREST OF JUSTICE, WE S ET ASIDE THE ORDER OF AUTHORITIES BELOW AND RESTORE THE ISSUE TO ASSESSING OFFICER WITH DIRECTION TO SET ASIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE A SSESSEE. SINCE, WE ARE RESTORING THE ISSUE TO ASSESSING OFFI CER ON PRELIMINARY ISSUE OF OPPORTUNITY AS DISCUSSED ABOVE , SO, WE ARE REFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 5. AS A RESULT, APPEAL FILED BY ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 22 ND DAY OF DECEMBER, 2014. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR Y ADAV) ACCOUNTANT MEMBER JUDICIAL MEM BER TRUE COPY S.K.SINHA & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,