Shri Dipak R. Khatuja L/h of late Sitaben Rambhai Khatuja, Ahmedabad V. The Incomne Tax Officer, Ward-6(1), ( New Ward- 7(2)(5)), Ahmedabad

ITA 1584/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1773 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ADITI SHETH
• Keywords: Opportunity of being heard; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER ./ ITA NO. 1584/AHD/2015 / ASSESSMENT YEAR: 2005-06 LATE SITABEN RAMBHAI KHATUJA, LEGAL HEIR-DIPAK RAMBHAI KHATUJA, 26, J.P. BUNGLOWS, NR. MAITRI HOSPITAL, MAYA CINEMA ROAD, NEW KUBERNAGAR, AHMEDABAD .. APPELLANT PAN : ADIPK 7037 Q VS INCOME TAX OFFICER, WARD-7(2)(5), AHMEDABAD .. RESPONDENT ASSESSEE(S) BY : MS. ADITI SHETH, AR REVENUE BY : SHRI MUKESH SHARMA, SR. DR. / DATE OF HEARING 28/04/2016 /DATE OF PRONOUNCEMENT 28/04/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XV I, AHMEDABAD DATED 09.03.2010 FOR ASSESSMENT YEAR 2005 -06. 2. THE ASSESSEE HAS FILED FOLLOWING GROUNDS OF APP EAL:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, AHMEDABAD (CIT(A) FOR SHORT) HAS GRIEVOUSLY ERRED I N LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT ON THE LAME GROUND THAT THE NOTICE OF HEA RING RETURNED UNSERVED BY POSTAL AUTHORITIES AND HAS IN THE PROCESS, FAILED TO APPRECIATE; A) THAT THE FACTS ARE REQUIRED FOR DECIDING THE APPEAL AND NOT THE PRESENCE OF THE APPELLANT OR AUTHORIZED REPRESENTATIVE AND THE FACTS WERE VERY MUCH (SMC) ITA NO. 1584/AHD/2015 LATE SITABEN RAMBHAI KHATUJA VS. ITO AY 2005-06 2 AVAILABLE IN THE ASSESSMENT ORDER OR COULD HAVE BEE N CONVENIENTLY GATHERED FROM THE ASSESSMENT RECORD. B) THE LETTER DT. 28-06-2008 FILED WITH HIS OFFICE ON 30- 06-2008 INTIMATING THE CHANGE OF ADDRESS. C) THAT THE FILING OF THE APPEAL ON 07-01-2008 IN ITSE LF SHOWS THE SERIOUSNESS ON THE PART OF APPELLANT. 2. THE LD. CIT(A) HAS PURPOSEFULLY DISMISSED THE APPEA L AND HAS THEREBY FAILED IN HIS DUTIES CAST UNDER THE ACT TO THE HUGE LOSS OF THE APPELLANT. THE APPELLANT REQUESTS THE HONBLE TRIBUNAL TO AWARD THE COST AGA INST THE LD. CIT(A) WHO IS NOT ONLY UNJUST AND DISOBEDIE NT BUT ALSO HAS FAILED IN DISCHARGING HIS DUTIES SERIO USLY AND THEREBY DRAWN THE APPELLANT TO UNWANTED LITIGAT ION COST. 3. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, MODIFY, SUBSTITUTE, CHANGE OF ANY OF THE GROUNDS AS AND WHEN THE OCCASION MAY ARISE. 3. AT THE OUTSET, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THIS APPEAL HAS BEEN FILE D BY THE ASSESSEE LATE BY APPROXIMATELY 1762 DAYS. FOR THIS , THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION O F DELAY, WHICH IS SUPPORTED BY THE AFFIDAVIT OF DIPAK RAMBHA I KHATUJA, SON AND LEGAL HEIR OF ASSESSEE, INTER ALIA, STATING THAT THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL WAS DUE TO NON- COMMUNICATION/NON-RECEIPT OF ORDER OF CIT(A) IN TIM E, AS DEPOSED BY SHRI DIPAK RAMBHAI KHATUJA IN HIS AFFIDA VIT DATED 07.11.2015. ON DUE CONSIDERATION OF THE EXPLANATION OF THE ASSESSEE AND THE AFORESAID AFFIDAVIT ON RECORD, I A M SATISFIED THAT THERE IS NO DELIBERATE ATTEMPT AT THE END OF T HE ASSESSEE TO MAKE HIS APPEAL TIME BARRED. THEREFORE, I CONDONE THE DELAY AND PROCEED TO DECIDE THE APPEAL ON MERIT. (SMC) ITA NO. 1584/AHD/2015 LATE SITABEN RAMBHAI KHATUJA VS. ITO AY 2005-06 3 4. ON MERIT, I FIND THAT THE LD. CIT(A) HAS DISPOSE D OF THE ASSESSEES APPEAL BY OBSERVING AS UNDER:- 3. IN THIS CASE NOTICE OF HEARING WAS ISSUED BY T HE OFFICE OF THE CIT(A)-XI, ABAD ON 04.06.2008 FIXING THE HE ARING ON 21.08.2008. THIS NOTICE COULD NOT BE SERVED BY THE POSTAL AUTHORITIES UNDER THE REMARKS LEFT. ANOTHER NOTI CE WAS ISSUED AT THE GIVEN ADDRESS IN APPEAL MEMO ON 17.02.2010 FIXING THE HEARING ON 11.03.2010. HOWEV ER, THIS NOTICE ALSO CAME UNSERVED BY POSTAL AUTHORITIE S UNDER THE REMARK LEFT. SINCE THE APPELLANT HAS N OT COMMUNICATED ABOUT HER NEW ADDRESS, IT IS PRESUMED THAT SHE IS NOT SERIOUS IN PURSUING THE APPEAL. 4. THE APPEAL IS THEREFORE TREATED AS DISMISSED. FROM THE ABOVE AS WELL AS AFTER GOING THROUGH THE R IVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, I FIND THAT THE ASSESSEE WAS NOT ALLOWED SUFFICIENT OPPORTUNITY OF BEING HEARD AND THEREFORE, THE ORDER PASSED BY THE CIT(A) WAS A NON- SPEAKING ORDER. THEREFORE, IN THE INTEREST OF JUST ICE, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE BY PA SSING A SPEAKING ORDER IN ACCORDANCE WITH LAW, AFTER PROVID ING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE I AM RESTORING THE MATTER BACK TO CIT(A) ON PRELIMINARY ISSUE, I A M REFRAINING TO COMMENT ON MERIT OF THE ISSUE AT HAND. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28 TH APRIL, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA K. YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 28/04/2016 BIJU T., PS (SMC) ITA NO. 1584/AHD/2015 LATE SITABEN RAMBHAI KHATUJA VS. ITO AY 2005-06 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD