M/s. Kajari Minerals Pvt. Ltd., , Udaipur V. DCIT, Central Circle-1, Udaipur

ITA 126/JODH/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5785 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Assessment record; Set aside
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NOS. 126 & 127/JODH/2019 (ASSESSMENT YEARS -2014-15 & 2015-16) M/S KAJARI MINERALS PVT LTD., 17, NYAY MARG, COURT CIRCLE, UDAIPUR 313001 VS THE DCIT, CENTRAL CIRCLE-1, UDAIPUR (APPELLANT) (RESPONDENT) PAN: AABCK8733E REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY SH SHARWAN KUMAR GUPTA, ADVOCATE DATE OF HEARING 07.05.2019 DATE OF PRONOUNCEMENT 09.05.2019 O R D E R PER N.K. SAINI, V.P. : BOTH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE AGAINST THE SEPARATE ORDERS EACH DATED 12.2.2019 OF THE LD. CIT(A)-2, UDAIPUR. 2 2. SINCE THE APPEALS WERE HEARD TOGETHER, THEREFORE , THE SAME ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE AND BREVITY. 3. VIDE GROUND NO. 2 OF BOTH THE APPEALS THE GRIEVA NCE OF THE ASSESSEE RELATES TO THE EX-PARTE ORDERS PASSED BY THE LD. CIT(A) WITHOUT PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. IN BOTH THE APPEALS THE LD. CIT(A) PASSED THE EX-PA RTE ORDERS BY MENTIONING IN PARA 2 OF EACH OF THE IMPUGNED ORDER AS UNDER:- '2. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE WAS ALLOWED SEVERAL OPPORTUNITIES OF BARING HEARD BUT THERE WAS NO SUBSTANTIVE COMPLIANCE. DETAILS OF OPPORTUNITIES PROVIDED ARE A S UNDER:- S. NO. DATE OF ISSUE NOTICE DATE OF HEARING REMARKS 1. 15.05.2018 20.06.2018 NONE ATTENDED NEITHER WAS ANY ADJOURNMENT SOUGHT 2. 29.08.2018 18.09.2018 NONE ATTENDED NEITHER WAS ANY ADJOURNMENT SOUGHT 3. 27.12.2018 07.01.2019 ADJOURNMENT LETTER FILED SEEKING DATE FOR 22.01.2019 4. DATE AS ADJOURNED ON ASSESSEE'S REQUEST 22.01.2019 NONE ATTENDED NEITHER WAS ANY ADJOURNMENT SOUGHT IN THE ABSENCE OF ANY SUBSTANTIVE COMPLIANCE IN APP EAL, THE APPEAL IS DECIDED ON THE BASIS OF MATERIAL ON RECORD .' 3 4. NOW, THE ASSESSEE HAS CHALLENGED THE ACTION OF T HE CIT(A). THE LD. COUNSEL FOR THE ASSESSEE HAS FURNISHED THE WRITTEN SUBMISSIONS STATING THEREIN AS UNDER:- 'IN THE MATTER OF M/S KAJARI MINERALS PVT. LTD V/S AO IN APPEAL NO. 126 & 127/JODH/2019 FOR A.Y 2014-15 AND 2015-16 U/S 153A RWS 143(3) 'COMMON WRITTEN SUBMISSIONS ON GOA-2: INVALID EXPARTY ORDER PASSED BY THE ID. CIT( A) FACTS AND SUBMISSIONS: IN THE ORDER THE ID. CIT(A) HAS NOTED THAT THE CASE WAS FIXED ON 07.01.2019 ON THAT DATE ADJOURNMENT LETTER FILLED SEEKING DATE FOR 22.01.20 19 AND THE DATE WAS ADJOURNED ON ASSESSEE'S REQUEST BUT ON 22. 01.2019 NONE ATTENDED NEITHER WAS ANY ADJOURNMENT SOUGHT. HENCE SHE PASSED EXPARTY ORDER WITHOUT PROVIDING ANY ADEQUATE AND RE ASONABLE OPPORTUNITY OF BEING HEARD. IN THIS REGARD IT IS SU BMITTED THAT IN THE ABOVE MATTER SH. P.C. SHAH SENIOR COUNSEL HAS T O APPEAR AND ARGUE THE MATTER. BUT DUE TO SOME HEALTH PROBLEM HE COULD NOT APPEAR ON 07.01.2019 BEFORE THE ID. CIT(A) AND ON B EHALF OF HIM SH. DHRUV SHAH HIS JUNIOR APPEARED BEFORE THE CIT(A ) ON DT. 07.01.2019 AND SOUGHT ADJOURNMENT, THE CASE WAS ADJ OURNED FOR 22.01.2019. AND HE HAS INFORMED TO HIS SR. SH. P.C. SHAH, THE COUNSEL THAT THE CASE ADJOURNED AND AT THE TIME OF INFORMING SH. P.C. SHAH WAS NOT IN OFFICE AND HE HAS FORGET TO NO TE DOWN THE DATE IN THE CASE DIARY WHEN ON NEXT HE CAME IN THE OFFICE AND IT IS ALSO NOT IN THE KNOWLEDGE OF SH. P.C. SHAH THAT WHI CH DATE HAS BEEN INFORMED AND ALSO SH. DHRUV SHAH FORGET TO REM EMBER TO SH. P.C. SHAH FOR NEXT DATE. HENCE DUE TO THIS WE H AVE NOT APPEARED ON 22.01.2019 IN THE UNDER IMPRESSION THAT THE CASE IS FIXED FOR FURTHER OR NEXT NOTICE SHALL BE RECEIVED. THUS IN THE PRESENT CASE WE FAILED TO UNDERSTAND WH O IS WRONG EITHER JUNIOR SH. DHRUV SHAH OR SH. P. C. SHAH SENI OR COUNSEL. IT APPEARS THAT THERE WAS SOME COMMUNICATION GAPE AMON G ALL OF THEM. HENCE WE ARE NOT IN A POSITION TO MAKE ALLEGA TION ON EACH OTHER. HOWEVER AT LEAST THERE WAS NO DEFAULT OF THE ASSESSEE WHO 4 WAS DEPENDED UPON THE COUNSEL AND DEPENDING UPON US . HENCE HE SHOULD NOT SUFFER FOR ANY COMMUNICATION GAP AMON G THEM DUE TO HUMAN BEING MISTAKE. 2. FURTHER ALTERNATIVELY AND WITHOUT PREJUDICE TO T HE ABOVE THE ID. CIT(A) HAS NOT DECIDED THE CASE ON MERIT HE HAS SIMPLY DISMISSED THE APPEAL WITHOUT GIVING ANY REASONING A ND ADJUDICATING THE LEGAL GROUNDS OF APPEAL AND OTHER GROUNDS. AND HE COULD HAVE CALLED THE ASSESSMENT RECORD AND COUL D HAVE DECIDED THE MATTER. HENCE THE MATTER MAY KINDLY BE RESTORED TO THE ID. CIT(A) FOR DECIDING ALL THE GROUNDS OF APPE AL AFRESH AND OBLIGE. FURTHER IF THE HONBLE BENCH DESIRED TO LISTEN OR HE AR THE MATTER ON MERIT A SEPARATE WS IS ENCLOSED WITH PAPER BOOK AND OBLIGE. SUBMITTED RESPECTFULLY, SD/- (SHRAWAN KUMAR GUPTA A/R) ADVOCATE' 5. DURING THE COURSE OF HEARING, LD. COUNSEL FOR TH E ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID WRITTEN SU BMISSIONS. 6. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR ALTHOUG H SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) BUT COULD N OT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASS ESSEE. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, IT IS NOTICED THAT THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSES SEES EX-PARTE. HOWEVER, THE ASSESSEES HAD ALSO GIVEN REASONS FOR NON-APPEARANCE ON 5 22.1.2019 WHEN THE CASE WAS FIXED AT THE REQUEST OF THE ASSESSEE BEFORE THE LD. CIT(A). 8. WE, THEREFORE CONSIDERING THE TOTALITY OF THE F ACTS DEEM IT APPROPRIATE TO SET ASIDE THESE CASES BACK TO THE FI LE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER GIVING DUE AND REASONABLE OPPORTUNITY TO THE ASSESSEES OF BEING HE ARD. WE ALSO DIRECT THE ASSESSEES TO COOPERATE AND NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENTS. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 09.05.2019) SD/- SD/- (A.T. VARKEY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 09.05.2019 . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , # / DR, ITAT, JODHPUR 6. & / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR 6