Trisuns Export Corporation, GANDHIDHAM V. The Income Tax Officer, Ward-2, GANDHIDHAM

ITA 166/RJT/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2365 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-02-2020
• Assessment Year: 1998-1999
• Appeal Filed On: 06-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED , ACCOUNTANT MEMBER & MS. MADHUMITA ROY , JUDICIAL MEMBER SR. NO. ITA NO. ASSTT. YEAR NAME OF APPELLANT NAME OF RESPONDENT 1. 165/RJT/2016 1997 - 98 TRISUNS EXPORT CORPORATION, SHOP NO. 24, VIVEKANAND MARKET, PLOT NO. 122/123, SECTOR - 8, GANDHIDHAM THE INCOME TAX OFFICER, WARD - 2, GANDHIDHAM KUTCH 2. 166/RJT/2016 1998 - 99 TRISUNS EXPORT CORPORATION, SHOP NO. 24, VIVEKANAND MARKET, PLOT NO. 122/123, SECTOR - 8, GANDHIDHAM THE INCOME TAX OFFICER, WARD - 2, GANDHIDHAM KUTCH 3. 167/RJT/2016 1999 - 00 TRISUNS EXPORT CORPORATION, SHOP NO. 24, VIVEKANAND MARKET, PLOT NO. 122/123, SECTOR - 8, GANDHIDHAM THE INCOME TAX OFFICER, WARD - 2, GANDHIDHAM KUTCH 4. 168/RJT/2016 2000 - 01 TRISUNS EXPORT CORPORATION, SHOP NO. 24, VIVEKANAND MARKET, PLOT NO. 122/123, SECTOR - 8, GANDHIDHAM THE INCOME TAX OFFICER, WARD - 2, GANDHIDHAM KUTCH ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAMIR JANI , A.R / RESPONDENT BY : SHRI SANJAY KUMAR , SR. D.R ITA NO . 165 TO 168 /RJT/ 201 6 A.Y. 1997 - 98, 1998 - 99, 1999 - 00, & 2000 - 01 - 2 - / DATE OF HEARING 25 /0 2 /20 20 / DATE OF PRONOUNCEMENT 28 / 0 2 /20 20 / O R D E R PER BENCH : THE BUNC H OF APPEALS FILED BY THE SAME ASSESSEE ARE DIRECTED AGAINST THE ORDERS ALL DATED 10.10. 2014 PASSED BY THE L D . COMMISSIONER OF I NCOME T AX A PPEALS - II, RAJKOT ARISING OUT OF THE ORDER ALL DATED 31.03. 2013 PASSED BY THE I NCOME T AX O FFICER, WARD NO. 2, GANDHIDHAM P ASSED UNDER SECTION 143(3) R. W . S 254(1) OF THE INCOME T AX A CT, 1961(HEREINAFTER REFERRED TO AS THE ACT ) FOR A.YS. 1997 - 98, 1998 - 99, 1999 - 00 & 2000 - 01 RESPECTIVELY. SINCE ALL THE CASES RELATE TO THE SAME ASSESSEE , AND THE ISSUE IS IDENTICAL , THESE MATTERS ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON ORDER. 2. AN APPLICATION HAS ALSO BEEN FILED BY THE ASSESSEE PRAYING FOR COND ONATION OF DELAY OF 422 DAYS IN PREFERRING THE INSTANT APPEAL BEFORE THE HON BLE TRIBUNAL . AN AFFIDAVIT AFFIRMED B Y ONE SHRI LILADHAR TIKAMCHAND K HUSHALANI CLAIMS TO BE THE KARTA OF THE HUF EXPLAIN ING THE DELAY HAS BEEN ANNEXED TO THE FILE . THE GIST OF THE SA ID EXPLANATION IS THIS THAT THE ASSESSEE F I RM WAS CONSTITUTED BY THE PARTNERS NAMELY TIKAMCHAND K HUSHALANI, SHANKARLAL TIKAMCHAND KHUSHALANI AND THE DEPONENT OF THE AFFIDAVIT BEING LILAD HAR TIKAMCHAND K HUSHALANI; THE SAID LILADHAR TIKAMCHAND K HUSHALANI HAPPENS TO BE A SLE EPING PARTNER OF THE SAID FI RM. IT IS FURTHER STATED IN THE SAID AFFIDAVIT THAT THE SAID TIKAMCHAND K HUSHALANI WHO WAS ATTENDING THE ASSESSMENT IN ALL APPEAL PROCEEDING S FOR A.YS. 1997 - 98 TO 2000 2001 DIED ON 16.10.2008 AND ITA NO . 165 TO 168 /RJT/ 201 6 A.Y. 1997 - 98, 1998 - 99, 1999 - 00, & 2000 - 01 - 3 - THEREAFTER , SHANKARLAL TIKAMCHAND K HUSHALANI ATTENDED THE PENDING LITIGATION S TILL HIS DEMISE ON 05.05.2017. THE SAID SHANKARLAL TIKAMCHAND K HUSHALANI ALSO FILED AN APPLICATION BEFORE THE CO MMISSIONER OF INCOME T AX A PPEALS - II, RAJKOT ALONG W ITH AN AFFIDAVIT DATED 27.02.20 16 STATING THAT IT HAS BEEN BROUGHT TO HIS NOTICE THAT THE APPEAL HAS BEEN DISPOSED OF F BUT THE ORDER COPY WHEREOF HAS NOT BEEN RECEIVED BY HIM. HOWEVER , NO REPLY HAS BEEN FORTHCOMING FROM THE REVENUE AUTHORITIES TO THAT EFFECT TILL D ATE. SINCE THE DEPONENT OF THE INSTANT AFFIDAVIT WAS THE SLEEPING PARTNER OF THE F I RM WAS NOT AWARE OF THE LITIGATIONS PENDING BEFORE THE REVENUE AUTHORITIES. ONLY UPON RECEIVING SOME PENALTY NOTICES WHEREFROM IT APPEARS THAT THE APPEAL PREFERRED BY THE ASSESSEE FOR THE A. YS. 1997 - 98 TO 2000 - 01 HAVE BEEN DISMISSED , THE DEPONENT SHRI LILAD HAR TIKAMCHAND K HUSHALANI CONT ACTED THE L EARNED CONCERNED CIT - A , RAJKOT AND REQUEST ED TO THE LD. AO TO PROVIDE A COPIES OF THE APPELLATE ORDER S BY AND UNDER AN APPLICATION DATED 27.02.2016 WHEREUPON THOSE ORDERS WERE MADE AVAILABLE ON 08 .0 3 . 20 16 AND ONLY T HEREAFTER ON 06.05. 2016 THE INSTANT APPEAL HAS BEEN FILED BEFORE THE HON BLE TRIBUNAL BY THE ASSESSEE. 3. WE HAVE CAREFULLY CONSIDERED T HE EXPLANATION RENDERED BY THE DEPONENT OF THE AFFIDAVIT WHICH SEEMS TO BE GENUINE. THE DELAY CAUSED DUE TO PRACTICAL DIFFICULTY WHICH IS GENUINE AND BONA FIDE AS IT ALSO APPEARS FROM THE SAID AFFIDAVIT. IT IS ALSO A FACT THAT UNLESS THE DELAY I S CONDONED THE ASSESSEE WOULD SUFFER IRREPARABLE LOS S AND HARDSHIP. WE, THUS , FOR THE ENDS OF JUSTICE CONDONE THE DELAY . ITA NO . 165 TO 168 /RJT/ 201 6 A.Y. 1997 - 98, 1998 - 99, 1999 - 00, & 2000 - 01 - 4 - 4. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LD. A DVOCATE APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE DUE TO THE REASONS MENTIONED ABOVE COULD NOT APPEAR BEFORE THE LD. COMMISSIONER OF I NCOME T AX A PPEALS - II, RAJKOT AND HENCE THE APPEAL HAS BEEN DISMISSED EX - PARTE BY CONFIRMING THE ORDER PASSED BY THE LD. AO . HE, THEREFORE, PRAYS FOR ANOTHER OPPORTUNITY OF BEING HEARD IN ORDER TO REPRESENT HIS CASE BEFORE THE AUTHORITIES BELOW IN ITS PROPER PERSPECTIVE AND THEREFORE PRESSED FOR SETTING ASIDE THE ISSUE TO THE FILE OF THE LD. AO FOR CONSIDERING THE ISSUE AFRESH. THE LEARNED REPRESENTATIVE OF THE DEPARTMENT , HOWEVER , HAS NOT OBJECTED TO SUCH PRAYER MADE BY THE LEARNED AR. 5. HAVING HEARD THE LD. COUNSEL APPEARING FOR THE PARTIES, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE , PARTICULARLY THE REASON S FOR NOT BEEN ABLE TO REPRESENT THE CASE BEFORE THE REVENUE BY THE ASSESSEE W E FIND IT FIT AND PROPER IN ORDER TO PREVENT A MISCARRIAGE OF JUSTICE TO AFFORD A FURTHER OPPORTUNITY OF HEARING TO THE ASSESSEE AND THUS WE DISPOSE OF THE MATTER WITH THE DIRECTION UPON THE LD. AO TO RECONSIDER THE ISSUE AFRESH UPON GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE MATERIALS ON R ECORD AND ALSO ANY OTHER EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE MATTER. HOWEVER , WE MAKE I T CLEAR THAT THE ASSESSEE WILL ALSO COOPERATE WITH THE ASSESSING O FFICER WITHOUT ASKING FOR ANY UNNECESSARY ADJOURNMENT. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO . 165 TO 168 /RJT/ 201 6 A.Y. 1997 - 98, 1998 - 99, 1999 - 00, & 2000 - 01 - 5 - ITA NOS. 166 TO 168/RJT/2016 (A.YS. 1998 - 99 TO 2000 - 01): - 7. THE GROUNDS OF APPEAL AS ARGUED BY THE LD. AR IS IDENTICAL TO THAT OF THE ISSUE ALREADY DEALT WITH BY US IN ITA NO. 165 /RJT/201 6 FOR A.Y. 1997 - 98 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTATIS MUTANDIS . HENCE, THESE GROUNDS OF APPEAL PREFERRED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE COMBINED RESULTS, ALL THE APPEALS OF THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 28 / 0 2 /20 20 SD/ - SD/ - (WASEEM AHMED) ( MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 28 /0 2 /20 20 TANMAY DATTA, SR. PS TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - II, RAJKOT 5. , , /DR,ITAT, RAJKOT 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, RAJKOT