Shri Rameshbhai Maganbhai Patel, Surat V. The Income tax Officer, Ward-8(4), Surat

ITA 1602/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9802 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 09-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Non compliance; Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI MUKUL KR. SHRAWAT, JM AND N. S. SAINI , AM SHRI RAMESHBHAI MAGANLAL PATEL, B-12, RADHA KRISHNA APARTMENT, KESHAV PARK SOCIETY, PANDOL VED ROAD, SURAT. VS. INCOME - TAX OFFICER, WARD 8(4), SURAT. (APPELLANT) .. (RESPONDENT) APPELLANT B Y : - SHRI M. K. PATEL, LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE RESPONDENT BY: - SHRI K. M. MAHESH, SR.D .R. O R D E R O R D E R O R D E R O R D E R P PP PER ERER ER N. N. N. N. S. SAINI, S. SAINI, S. SAINI, S. SAINI, ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V, SUR AT DATED 26/12/2007 PASSED IN APPEAL NO.CAS-V/109/06-07. 2. THE SOLE GROUND OF APPEAL TAKEN UP BY THE ASSESS EE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE AO IN LEVYING PENALTY OF `.83,167 /- U/S 271(1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME ON 31.12.2002 SHOWING INCOME OF `.82,090/- W HICH INCLUDED AGRICULTURAL INCOME OF `.27,910/-.THE SAME WAS ASSE SSED UNDER SECTION 143(3) ON 13.1.2005 AT AN INCOME OF `.3,66, 960/- WHICH INCLUDED UNSECURED LOAN RECEIVABLE AND OPENING CAPI TAL OF `.2,62,377, AGRICULTURAL INCOME TREATED AS INCOME FROM UNDISCLO SED SOURCES OF `.13,595/- AND ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL OF `.36,800/-. THEREAFTER THE AO LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF `.83,167/- ON ACCOUNT OF FILING INACCURA TE PARTICULARS OF INCOME AND THEREBY CONCEALING INCOME. ON APPEAL, TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ISSUED NOTICES ON SEVEN ITA NO . 1602 /AHD/200 8 ASST. YEAR :2002-03 2 DIFFERENT DATES AS MENTIONED IN LEARNED COMMISSIONE R OF INCOME TAX (APPEALS)S ORDER TO THE ASSESSEE, WHICH WERE NOT C OMPLIED WITH BY THE ASSESSEE. IN THE CIRCUMSTANCES THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE LEVY OF PENALTY IMPOSED BY THE LEARNED ASSESSING OFFICER. 4. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE DURING THE COURSE OF HEARING SUBMITTED THAT THE QUANTUM AP PEAL OF THE ASSESSEE WAS FILED IN ITA NO. 2455/AHD/2005 WHICH W AS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 23-2-2006 FOR NON -APPEARANCE OF THE ASSESSEE ON THE DATE OF HEARING FIXED BY THE TRIBUN AL. HE SUBMITTED THAT THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATI ON FOR WITHDRAWING THE ORDER OF THE TRIBUNAL DATED 23-2-2006 DISMISSIN G THE APPEAL OF THE ASSESSEE FOR NON APPEARANCE ON THE DATE OF HEAR ING WHICH IS PENDING BEFORE THE TRIBUNAL. HE FURTHER SUBMITTED T HAT THE ASSESSEE COULD NOT PRESENT HIS APPEAL BEFORE THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) DUE TO NON COMPLIANCE WITH THE NOTICES OF HEARING OF THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) AND REQUESTED FOR GRANT OF ONE MORE OPPORTUNITY TO THE ASSESSEE FOR PRESENTING HIS APPEAL BEFORE THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS). HE ALSO MADE A STATEMENT AT THE BAR THAT IF ONE MORE OPPORTUNITY IS GRANTED THEN HE UNDERTAKES TO APPEAR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR HE ARING OF THE APPEAL AS AND WHEN CALLED UPON TO DO SO BY THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS). 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO HAD NO OBJECTION IF THE MATTER WAS RESTORED TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJU DICATION. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS THE ASSESSEE DID NOT REMAIN PRESENT ON THE DATES OF HEARING FIXED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS MADE A STATEMENT AT BAR THAT IF ONE MORE OPPORTUNITY OF HEARING IS GRANTED FOR APPE ARING BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HE UND ERTAKES TO 3 COMPLY WITH THE SAME. IN OUR CONSIDERED OPINION IT WOULD BE IN THE INTEREST OF JUSTICE TO GRANT ONE MORE OPPORTUNITY T O THE ASSESSEE TO PRESENT HIS APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ALSO OBJECTION IN REMANDING THE MATTER TO THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION. THEREF ORE, WE SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) AND REMAND THE MATTER BACK TO HIS FILE FOR FRESH ADJUDI CATION OF THE APPEAL OF THE ASSESSEE AFTER ALLOWING REASONABLE OPPORTUNI TY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO SUO MOTO APPE AR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER FOR FIXING THE DATE OF HEARING OF THE APPEAL AND TO PRODUCE ALL RELEVANT DOCUMENTS AND EV IDENCES BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS AND WHEN CALLED UP TO DO SO BY THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS). THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) IS ALSO DIRECTED TO DISPOSE OF THE APPEAL EXPEDITIOUSLY. WI TH THESE DIRECTIONS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 24 TH DAY OF SEPTEMBER, 2010. SD/- SD/- (MUKUL KR. SHRAWAT) (N. S. SAINI) JUDICIAL MEMBER ACCOUNTANT ME MBER AHMEDABAD: ON THIS 24 TH DAY OF SEPTEMBER, 2010 COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS)-V, SURAT 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 4 DATE INITIALS 1. DRAFT DICTATED ON 20-9-2010 ------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 21-9-2010 ----------------- 3. DRAFT PROPOSED & PLACED 21-9-2010 -----------------JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 23-9-2010 --------------JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 24-9-2010 -------------------- 6. KEPT FOR PRONOUNCEMENT ON 24-9-2010 -------------------- 7. FILE SENT TO THE BENCH CLERK 24-9-2010 -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --------------------