Yusuf Ismail Shaikh, Pune V. Income-tax Officer, Ward - 1(3), Pune

ITA 1282/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6759 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 07-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Principle of natural justice
• Section: 10

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY, JM . / ITA NO S . 1281 & 1282 /PUN/20 18 / ASSESSMENT YEAR S : 2009 - 10 & 2011 - 12 Y USUF ISMAIL SHAIKH PROP. STAR PROFILES S. NO. 54, PLOT NO. 93, SWAMI VIVEKANAND ESTATE, HANDEWADI ROAD, HADAPSAR, PUNE 411028 . PAN : ARZPS2085B ....... / APPELLANT / V/S. THE INCOME TAX OFFICER , WARD 1(3) , PUNE. / RESPONDENT ASSESSEE BY : SHRI ROHIT TAPADIYA REVENUE BY : SHRI RAJE SH GAWALI REVENUE BY : SHRI RAJE SH GAWALI / DATE OF HEARING : 21.01.2019 / DATE OF PRONOUNCEMENT : 22 .01.2019 / ORDER PER VIKAS AWASTHY, JM THESE TWO APPEALS BY THE A SSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) 7, PUNE FOR THE ASSESSMENT YEARS 2009 - 10 AND 2011 - 12 , RESPECTIVELY . BOTH THE IMPUGNED ORDERS ARE OF EVEN DATE I.E. 03.05.2018. SINCE THE ISSUE RAISED IN BOTH THE APPEALS IS SIMILAR, THESE APPEALS ARE HEARD TOGETHER AND ARE DISPOSED OFF VIDE THIS COMMON ORDER. 2 ITA NOS.1281 &1282/PUN/2018 A.YS. 2009 - 10 & 2011 - 12 2. SHRI ROHIT TAPADIYA APPEARING ON BEHALF OF THE A SSESSEE SUBMITTED AT THE OUTSET THA T THE IMPUGNED ORDERS HAVE BEEN PASSED IN AN EX - PARTE PROCEEDING S . THE NOTICE OF THE APPEALS WAS NEVER SERVED ON THE A SSESSEE AS THE A SSESSEE HAD SHIFTED TO THE NEW PREMISES. THE LD. AR SUBMITTED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PRESEN T THE MERITS OF CASE BEFORE THE FIRST APPELLATE AUTHORITY. 3. ON THE OTHER HAND, SHRI RAJESH GAWALI REPRESENTING THE DEPARTMENT SUBMITTED THAT NOTICE OF THE APPEAL S WERE SENT TO THE A SSESSEE O N THE ADDRESS MENTIONED IN FORM NO. 35. THE A SSESSEE NEVER INTIMATED HIS FRESH / NEW ADDRESS BY FILING REVISED FORM NO. 35 , T HEREFORE, THE ACTION OF COMMISSIONER OF INCOME TAX (APPEALS) IN PASSING EX - PARTE ORDER CANNOT BE FAULTED. 4. BOTH SIDE S HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE ADDITION IN BOTH THE ASSESSMENT Y EARS UNDER APPEAL HAS BEEN MADE ON ACCOUNT OF BOGUS PURCHASES. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT NOTICE OF HEARING OF THE APPEAL WAS SENT TO THE A SSESSEE, HOWEVER, IT IS NOT EMANATING FROM THE IMPUGNED ORDER S THAT THE NOTICE WAS EV ER SERVED ON THE ASSESSEE . THE COMMISSIONER OF INCOME TAX (APPEALS) HAS CONFIRMED THE ADDITION MADE BY AO IN AN EX - PARTE PROCEEDING S . IT IS A WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT NO ONE SHOULD BE CONDEMNED UNHEARD AND FAIR OPPORTUNITY SHOULD BE GIVEN TO THE PARTIES TO THE LIS . WITHOUT COMMENTING ON THE MERITS OF THE ADDITION, WE DEEM IT APPROPRIATE TO RESTORE THIS APPEAL BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) FOR DECIDI NG THE ISSUE AFRESH AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE / A PPELLANT, IN ACCORDANCE WITH LAW. 3 ITA NOS.1281 &1282/PUN/2018 A.YS. 2009 - 10 & 2011 - 12 5. SINCE IN BOTH THE ASSESSMENT YEARS I.E. AY 2009 - 10 AND 2011 - 12, THE IMPUGNED ORDERS HAVE BEEN PASSED AT THE BACK OF THE ASSESSEE / A PPELLANT , T HE IMPUGNED ORDERS ARE SET ASI DE AND THE APPEALS OF THE A SSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE . 6. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON TUESDAY , THE 22 ND DAY OF JANUARY, 2019 . SD/ - SD/ - ( ANIL CHATURVEDI ) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 22 ND JANUARY, 2019 BIDHAN / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 2. / THE RESPONDENT. 3. THE COMMISSIONER OF INCOME TAX(APPEALS) - 7, PUNE. 4. THE COMMISSIONER OF INCOME TAX - 6, PUNE. 5 . , , - , / DR, ITAT, SMC BENCH, PUNE. 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE.