Shri Sharif Mohammed Pathan, JAIPUR V. ITO, BHILWARA

ITA 15/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9649 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 15 /JODH/201 7 ASSESSMENT YEAR: 2009 - 10 SHRI. SHARIF MOHAMMED PATHAN VS. THE ITO H.NO. 314, BESAWA HOUSE, WARD - 4 SANJAY NAGAR - B JHOTHWARA BHILWARA JAIPUR PAN NO. ABSPP5187A (APPELLANT) (RESPONDENT) APPELLANT BY : SH. AMIT KOTHARI RESPONDENT BY : SH. S.K. MEENA DATE OF HEARING : 2 8 /02/2017 DATE OF PRONOUNCEMENT : 02/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DT. 18/10/2016 OF LD. CIT(A) , AJMER PERTAINING TO ASSESSMENT YEAR 20 0 9 - 20 10 ON VARIOUS GROUNDS INCLUDING GROUND NO. 1 WHICH READS AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS WRONG AND HAS ERRED IN LAW IN PASSING IMPUGNED ORDER ON EXPARTE BASIS. 2. LD. AR APPEARING ON BEHALF OF THE ASSESSEE INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITTED THAT THE CIT(A) HAS TAKEN NOTICE OF HEARING FIXED IN THE PRESENT CASE ON FOUR DATES FROM JUNE 2016 TO OCTOBER 2016 AND HAS PASSED AN EXPARTE ORDER UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER. IT WAS HIS SUBMISSION THAT THE ASSESSEE AT THE RELEVANT POINT OF TIME COULD NOT BE PRESENT AS HE WAS SUFFERING FROM PARALYSIS APART FROM THAT HIS WIFE WAS ALSO UNDER GOING MEDICAL TREATMENT FOR ENDOMETRIUM FOR CANCER RELATED HEALTH ISSUES . I N THE CIRCUMSTANCES IT WAS HIS SUBMISSION THAT FOR REASONS BEYOND HIS CONTROL THE 2 ASSESSEE COULD NOT PRES ENT. THE ONLY RELIEF SOUGHT IT WAS HIS SUBMISSION IS RIGHT TO BE HEARD FOR WHICH PURPOSE THE ISSUE MAY BE REMAND BACK TO THE FILE OF LD. CIT(A). THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE G AVE HIS ORAL UNDERTAKING THAT IN THE EVENTUALITY OF THE REMA ND THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDING BEFORE THE LD. CIT(A). CONSIDERING THE SAID REASONS AND THE MATERIAL AVAILABLE ON RECORD THE LD. SR. DEPARTMENTAL REPRESENTATIVE HAD NO OBJECTION IF THE ISSUE IS REMANDED TO THE CIT(A) . 3. I HAVE HEARD R IVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE RECORD SHOWS THAT THE A SSESSEE DECLARED HIS INCOME OF RS. 1,40,965/ - WHEREIN AN ADDITION OF RS. 7,88,368/ - WAS MADE BY AN ORDER UNDER SECTION 143(3)/147. THE ASSESSEE CHALLENGED THE ORDER O N THE JURISDICTION AL ISSUE AS WELL AS THE ADDITION ON MERIT WHEREIN ADMITTEDLY THE ASSESSEE REMAIN UNREPRESENTED ON ACCOUNT OF HIS MEDICAL REASONS AND CANCER RELATED TREATMENT OF HIS WIFE . IN THE CIRCUMSTANCES ORAL PRAYER MADE BY THE LD. AR IS ACCEPTED AND THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE S ARE REMAND ED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. T HE OPPORTUNITY SO PROVIDED TO THE ASSESSEE IT IS HOPED IS USED FULLY AND FAIRLY BY MAKING PROPER COMPLIANCE BEFORE THE CIT(A). IN THE EVENTUALITY OF AB USE OF THE SAME BY NON PARTICIPATION FOR UNJUSTIFIABLE REASONS THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS PER THE PRONOUNCEMENT MADE IN THE OPEN COURT AT THE TIME OF HEARING ITSELF . THE ORDER IS PRONOUNCED ON 02/03/2017 IN THE OPEN COURT. SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 02/03/2017 AG 3 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT