M/s. Modi Builders, Pune V. Income-tax Officer, Ward - 5 (4), Pune

ITA 1701/PUN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8895 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-02-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRADDHA NICHALNISHTHA TIWARI
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1701 /PUN/2019 / ASSESSMENT YEAR : 20 08 - 09 M/S. MODI BULDERS, 1022, SHUKRAWAR PETH, TILAK ROAD, PUNE 411002 PAN : AAIFM7044C ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 5(4), PUNE / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : S MT. SHRADDHA NICHAL/NISHTHA TIWARI / DATE OF HEARING : 2 9 - 07 - 2020 / DATE OF PRONOUNCEMENT : 29 - 07 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 26 - 08 - 2019 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 13, PUNE [CIT(A)] FOR ASSESSMENT YEAR 2008 - 09 WHEREIN HE CONFIRMED THE ORDER OF ASSESSING OFFICER EX - PARTE TO ASSESSEE. 2 ITA NO .1701/PUN/2019, A.Y. 2008 - 09 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE ORDER PASSED BY THE LD. CIT(APPEALS) IS AN EX - PARTE ORDER. THE LD. CIT(APPE ALS) WENT ON TO PASS AN ORDER BASED ON THE MATERIAL AVAILABLE ON RECORD NAMELY, STATEMENT OF FACTS AND GROUNDS OF APPEAL AS PER FORM - 35 WHILE FILING THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. AR PRAYED THAT ONE FINAL OPPORTUNITY MAY BE PROVI DED TO THE ASSESSEE SO THAT THE MATTER MAY BE DISCUSSED AND REPRESENTED ON MERITS BEFORE THE LD. CIT(APPEALS) AND THEREFORE, IT SHOULD BE RESTORED TO THE FILE OF LD. CIT(APPEALS). 3. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT ONCE THE APPEAL IS DECIDED AS PER MATERIALS AVAILABLE ON RECORD, THERE WAS NO NEED FOR THE ASSESSEE TO AGAIN GO BACK TO THE LD. CIT(APPEALS) AND REFERRED TO PARA 1.4 OF THE CIT(A) WHEREIN ALREADY REASONABLE OPPORTUNITY HAS BEEN GRANTED TO THE ASSESSEE. 4. WE HAVE PERUSED THE CA SE RECORD AND HEARD THE RIVAL CONTENTIONS AND ALSO HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDER PASSED BY THE LD. CIT(APPEALS). THE ASSESSEE IS PARTNERSHIP FIRM AND IS ENGAGED IN THE BUSINESS OF PURCHASE, SALE, LEASE/RENT, DEVELOPMENT AND INVESTMENT I N LAND, REAL ESTATE, COMMERCIAL AND RESIDENTIAL PLOTS, CONSTRUCTION AND ALSO ACT AS A COMMISSION AGENT AND CARRYING ON ALL OTHER ALLIED ACTIVITIES. WE FIND THAT IT IS AN EX - PARTE ORDER WHERE RIGHTS AND LIABILITIES OF THE ASSESSEE WERE NOT ADJUDICATED UPON . SINCE THERE WAS NO APPEARANCE ON RECORD BY THE ASSESSEE AND ORDER OF LD. CIT(APPEALS) WAS BASED ONLY ON MATERIALS AVAILABLE ON RECORDS I.E. STATEMENT OF FACTS, GROUNDS OF APPEAL FILED BY THE ASSESSEE AND THE ASSESSMENT ORDER, THE ASSESSEE SHOULD BE GIVEN ONE FINAL OPPORTUNITY TO DEFEND HIS CASE THROUGH PROPER DOCUMENTARY EVIDENCES. IN 3 ITA NO .1701/PUN/2019, A.Y. 2008 - 09 THE INTEREST OF JUSTICE, WE THEREFORE, SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE FOR ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNIT Y OF HEARING TO THE ASSESSEE AND AT THE SAME TIME, THE ASSESSEE IS DIRECTED TO PRESENT BEFORE THE LD. CIT(APPEALS) IMMEDIATELY ON RECEIPT OF THIS ORDER TO REPRESENT ITS CASE ON MERITS. ANY SERVICE OF NOTICE IS DISPENSABLE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2020. SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 29 TH JULY, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 1 3, PUNE 4. THE PR. CIT - 3, PUNE 5. , , , / DR, ITAT, SMC BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE