Surendra Keshvlal Shah, Pune V. Dy. Comm. of Income-tax, Pune

ITA 1309/PUN/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85231 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 20-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: SUNIL PATHAK
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 1309/PN./2011 (ASSESSMENT YEAR : 2006-07) SHRI SURENDRA KESHVLAL SHAH S. NO.34/34A, PLOT NO.13 DEALING CENTRE, VELANKAR NAGAR NEAR MITRA MANDAL CHOWK, PUNE 411 009 .. APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE-1(1), PUNE .... RESPONDENT PERMANENT ACCOUNT NUMBER AACAS5181K ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI B.C. MALAKAR DATE OF HEARING : 26.11.2014 DATE OF PRONOUNCEMENT : 28.11.2014 O R D E R PER SUSHMA CHOWLA THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE CIT(A) DATED 31 ST JANUARY 2011, RELATING TO THE ASSESSMENT YEAR 2006 -07, AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF TH E INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). 2. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET , POINTED OUT THAT THE CIT(A) HAD PASSED THE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE ADDITIONAL GROUND OF APPEAL IN T HIS REGARD HAS BEEN FILED BY THE ASSESSEE WHICH READS AS UNDER:- WITHOUT PREJUDICE TO THE FOREGOING, THE ASSESSMENT ORDER AND THE APPELLATE ORDER SUFFERS FROM PRINCIPLE OF NATUR AL JUSTICE AND THE ASSESSEE BE ALLOWED ADEQUATE OPPORTUNITY OF BEI NG HEARD IN THE MATTER. 2 SHRI SURENDRA KESHVLAL SHAH 2. IT WAS THE PLEA OF THE LEARNED COUNSEL THAT THOUGH THE CIT(A) MENTIONS THE NAME OF THE COUNSEL IN THE FIRST PART OF THE APPELLATE ORDER, HOWEVER, THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED EX- PARTE, IN TURN RELYING ON THE RATIO LAID DOWN TRIBU NAL, DELHI BENCH, IN CIT V/S MULTIPLAN INDIA LTD., 38 ITD 320 (DEL.) AND WITHOUT ADJUDICATING THE ISSUE ON MERITS. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, P LACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE APPEAL OF THE ASSESSEE WAS FIXED BEFORE THE CIT(A) FROM DATE TO DATE AND WAS ADJOURNED AT THE R EQUESTS OF THE ASSESSEE. THE SAID APPEAL RELATING TO THE ASSESSMEN T YEAR 2006-07, WAS TAGGED WITH THE APPEAL FOR THE ASSESSMENT YEAR 2005-06 AND BOTH THESE APPEALS WERE FIXED ON 6 TH SEPTEMBER 2009. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE SAID DATE , BUT A TELEPHONIC MESSAGE WAS RECEIVED FROM THE AUTHORIZED REPRESENTA TIVE. THEREAFTER, THE MATTER WAS FIXED ON 6 TH OCTOBER 2010, 30 TH DECEMBER 2010 AND 7 TH JANUARY 2011 AND THEREAFTER ON 24 TH JANUARY 2011. THE ASSESSEE FAILED TO FURNISH THE INFORMATION ON 24 TH JANUARY 2011 AND THE LAST DATE OF HEARING WAS GIVEN ON 31 ST JANUARY 2011. ON THE SAID DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AN D THE CIT(A) DISMISSED THE APPEAL IN LIMINE. 5. THE COUNSEL APPEARING BEFORE THE CIT(A) FURNISHED A N AFFIDAVIT ON RECORD STATING THE REASONS FOR SEEKING ADJOURNME NT FROM DAY-TO- DAY AND IN RESPECT OF THE LAST DATE OF HEARING I.E. , 31 ST JANUARY 2011. 3 SHRI SURENDRA KESHVLAL SHAH THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT HE HAD GONE TO THE OFFICE OF THE CIT(A) WHICH WAS LOCATED AT SWARGATE, PUNE, HOWEVER, AT THAT TIME THE CIT(A) WAS NOT IN THE OFFICE AND HE W AS ALSO INFORMED THAT THE OFFICE OF THE CIT(A) WAS BEING SHIFTED TO NEW I.T. BUILDING LOCATED AT B.O. BHAVAN, SATARA ROAD, PUNE. NO DATE OF HEARING WAS GIVEN TO THE ASSESSEE AND THE EX-PARTE ORDER WAS RE CEIVED FROM THE OFFICE OF THE CIT(A). IN THE AFORESAID FACTS AND CI RCUMSTANCES, THE PLEA OF THE ASSESSEE WAS THAT THE MATTER BE RESTORED BAC K TO THE FILE OF THE LEARNED CIT(A) TO DECIDE THE ISSUE ON MERITS AS THE MERITS WAS NOT LOOKED INTO BY HIM WHILE DISPOSING OFF THE APPEAL E X-PARTE. 6. UNDER THE PROVISIONS OF SECTION 250(6), THE CIT(A) IS REQUIRED TO GIVE REASONABLE OPPORTUNITY OF HEARING TO THE ASSES SEE AND AFTER GOING THROUGH THE RECORD AND THE MATERIAL TO DECIDE THE I SSUES ON MERITS AND ADJUDICATE THE APPEAL. IN THE FACTS OF THE PRES ENT CASE, THE HEARING OF THE APPEAL WAS ADJOURNED ON VARIOUS DATE S FOR THE REASON THAT THE APPEAL FOR THE ASSESSMENT YEAR 2005-06 WAS STILL PENDING AND THE TWO APPEALS WERE ALSO TAGGED BY THE CIT(A) TO B E HEARD TOGETHER. THE LEARNED A.R. WAS APPEARING BEFORE THE CIT(A) AN D SEEKING ADJOURNMENT AND EVEN ON THE LAST DATE OF HEARING ON 31 ST JANUARY 2011, THE LEARNED A.R. CLAIMS THAT HE HAD GONE TO T HE OFFICE OF THE CIT(A) WHO WAS NOT PRESENT IN THE OFFICE AND ON ENQ UIRIES HE WAS INFORMED THAT THE OFFICE OF THE CIT(A) WAS BEING SH IFTED TO NEW ADDRESS. NO FRESH HEARING WAS GIVEN TO THE ASSESSEE . WE FIND MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD THAT HE WAS PREVENTED FROM SUFFICIENT CAUSE IN NOT REPRESENTING BEFORE THE CIT (A) ON THE LAST DATE OF HEARING, AS IN FACT HE HAD GONE TO THE OFFICE OF THE CIT(A). THE SAID 4 SHRI SURENDRA KESHVLAL SHAH DEFAULT, IF ANY, ON BEHALF OF THE LEARNED COUNSEL C ANNOT BE ATTRIBUTED TO THE ASSESSEE AND WE FIND NO MERIT IN THE EX-PART E ORDER PASSED BY THE CIT(A). IN ANY CASE, THE CIT(A) FAILED TO ADDRE SS THE ISSUE RAISED ON MERITS OF THE CASE AND WE DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) TO DECIDE THE SAME AFTER AFF ORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE A DDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. IN VIEW OF OUR S ETTING ASIDE THE MATTER BACK TO THE FILE OF THE CIT(A), WE ARE NOT A DDRESSING THE ISSUE RAISED ON MERITS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2014. SD/ - G.S. PANNU ACCOUNTANT MEMBER SD/ - SUSHMA CHOWLA JUDICIAL MEMBER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY PUNE, DATED: 28 TH NOVEMBER 2014 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, PUNE CITY CONCERNED; (5) THE DR, ITAT, PUNE; (6) GUARD FILE. TRUE COPY BY ORDER (ASSTT. REGISTRAR) ITAT, PUNE