Shri Darshak Rameshchandra Shah, Bhavnagar V. The ACIT., Circle-2, Bhavnagar

ITA 1347/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6334 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO. 1347/AHD/2017 (ASSESSMENT YEAR : 2012-13) DARSHAK RAMESHCHANDRA SHAH, PLOT NO.53, 55, 56B, GIDC, CHITRA, BHAVNAGAR. VS. ACIT, CIRCLE 2, BHAVNAGAR. [PAN NO. AGYPS 8543 E] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI TUSHAR P. HEMANI, A.R. RESPONDENT BY : SHRI L. P. JAIN, SR. D.R. DATE OF HEARING 31/07/2019 DATE OF PRONOUNCEMENT 17/10/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 24.03.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 6, AHMEDABAD ARISING OUT OF THE ORDER DATED 15.03.2015 PASSED BY THE ACIT, CENTRAL CIRCLE 1, BHAVNAGAR UNDER SECTION 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FOR THE ASSESSMENT YEAR 2012-13. 2. IT APPEARS FROM THE RECORDS BEFORE US THAT THE A SSESSEE HAS NOT BEEN ABLE TO APPEAR BEFORE THE LEARNED CIT(A) IN SPITE OF GIVEN APPROPR IATE OPPORTUNITY OF BEING HEARD; THE DATE OF HEARING FIXED BY THE LEARNED CIT(A) IS ALSO REFLECTING FROM THE SAID ORDER IMPUGNED BEFORE US. SINCE THE ASSESSEE FAILED TO AP PEAR BEFORE THE LEARNED CIT(A), HAVING NO OTHER ALTERNATIVE, THE MATTER TAKEN UP EX -PARTE AND ORDER PASSED ACCORDINGLY. - 2 - ITA NO.1347/AHD/2017 DARSHAK RAMESHCHAND SHAH VS ACIT ASST.YEAR 2012-13 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT ON THE FOLLOWING DATE THE AR APPEARED BEFORE THE LEARNED CIT(A) BUT THE LEARNED CIT(A) HAS NOT MADE ENTRY OF ALL THE DATES OF HEARING : 2. THE LEARNED CIT(A) HAS PASSED EX PARTE ORDER O N A FACTUALLY INCORRECT BASIS THAT NONE ATTENDED FOR THE APPELLANT. IN FACT, THE AR OF THE APPELLANT APPEARED ON THE FOLLOWING DATES BEFORE THE SAME CIT(A): 23/08/2016, 06/09/2016, 08/09/2016, 15/09/2016, 25/ 10/2016, 24/11/2016, 29/11/2016, 20/12/2016, 28/12/2016, 09/01/2017, 16/ 02/2017, 22/02/2017, 16/03/2017 & 21/03/2017. DATE OF HEARING MENTIONED IN APPELLATE ORDER FACTS 09.06.2016 ADJOURNMENT APPLICATION WAS FILED BECAUSE AR HAD MET WITH AN ACCIDENT AND WAS UNABLE TO APPEAR. 20.10.2016 APPEARED BUT MATTER NOT TAKEN UP AS L D. CIT(A) HIMSELF WAS ABSENT 20.12.2016 APPEARED BUT MATTER NOT TAKEN UP AS L D. CIT(A) HIMSELF WAS ABSENT 11.01.2017 TWO MATTERS HEARD BEFORE CIT(A) SHORTLY AFTER, ON 19.01.2017 19.01.2017 APPEARED BUT MATTER NOT TAKEN UP 16.02.2017 APPEARED BUT MATTER NOT TAKEN UP AS L D. CIT(A) HIMSELF WAS ABSENT 16.03.2017 TWO MATTERS HEARD BEFORE LD. CIT(A) ON ' 20.03.2017 (BEFORE ORDER DATE) HE, THEREFORE, PRAYS THE MATTER TO BE REMITTED BACK TO THE FILE OF THE LEARNED CIT(A) FOR PROPER ADJUDICATION OF THE MATTER. 4. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. IT APPEARS THAT THE CASE HAS BEEN FINALIZED BY THE LEA RNED CIT(A) EX-PARTE. THOUGH ON - 3 - ITA NO.1347/AHD/2017 DARSHAK RAMESHCHAND SHAH VS ACIT ASST.YEAR 2012-13 CERTAIN DATES THE ASSESSEE APPEARED BEFORE THE SAID AUTHORITIES BUT THE SAME IS NOT REFLECTED IN THE ORDER IMPUGNED. WE, THEREFORE, IN ORDER TO PREVENT THE MISCARRIAGE OF JUSTICE WE SET ASIDE THE ISSUE TO THE FILE OF THE L EARNED CIT(A) TO FINALIZE IT AFRESH UPON GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE AND UPON TAKING INTO CONSIDERATION THE RELEVANT EVIDENCE ALREADY PLACED ON RECORD AND ALSO THE EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEAR ING OF THE APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE ASSESSEE WILL ALSO CO-OPERATE WITH T HE LEARNED CIT(A) AND WILL NOT TAKEN UNNECESSARY ADJOURNMENT, WHATSOEVER. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 17/10/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/10/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-6, AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 15.10.2019 (COVERED CASE 2) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15.10.2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 16.10.2019