M/s. L. M. Bhandari, Pune V. Deputy Commissioner of Income-tax, Circle - 7, Pune

ITA 1728/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4893 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO. 1728/PUN/2018 !' # $# / ASSESSMENT YEAR : 2014-15 M/S. L.M. BHANDARI, AMAR AVINASH CORPORATE CITY, 4 TH FLOOR, ABOVE HSBC BANK, NEAR INOX MULTIPLEX, BUND GARDEN ROAD, PUNE-411 001. PAN : AABFB1824C ....... / APPELLANT %' / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-7, PUNE. / RESPONDENT APPELLANT BY : SHRI SUNIL GANOO RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 11.02.2019 / DATE OF PRONOUNCEMENT : 11.02.2019 & / ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS), PUNE-5, PUNE DATED 15.06.2018 FOR THE ASSESSM ENT YEAR 2014- 15. 2 ITA NO.1728/PUN/2018 A.Y.2014-15 2. DEVIATING FROM THE GROUNDS OF APPEAL, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF FINANCE AND REAL ESTATE AND FILED RETURN OF INCOME DECLARING LOSS OF RS.2.92 C RORES. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN LOSS U NDER THE HEAD INCOME FROM BUSINESS. 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICE R INVOKED THE PROVISIONS OF SECTION 36(1)(III) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) AND MADE ADDITION OF RS.2.87 CRO RES. AT THE END OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER COMPUTED TO TAL LOSS OF RS.5.14 LAKHS. 4. AGGRIEVED WITH THE ASSESSMENT ORDER, THE ASSESSEE FILE D APPEAL BEFORE THE CIT(APPEALS). HOWEVER, NEITHER THE ASSESSEE NOR HIS AU THORIZED REPRESENTATIVE WAS APPEARED BEFORE THE CIT(APPEALS) TO R EPRESENT THE CASE OF THE ASSESSEE. A NUMBER OF OPPORTUNITIES WERE GRANTED TO THE ASSESSEE, HOWEVER, THE ASSESSEE FAILED TO COMPLY WITH THE SAME. TH EREAFTER, THE CIT(APPEALS) PASSED AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ADDITION. THE LD. CIT(APPEALS) HAS PASSED AN EX-PARTE ORDER BY PLACING RELIANCE ON THE FOLLOWING DECISIONS: I) M/S. CHEMIPOL VS. UNION OF INDIA & ORS. IN CENTRAL EXCISE APPEAL NO.62 OF 2009 VIDE JUDGMENT DATED 17 TH SEPTEMBER, 2009. II) CIT VS. S. CHENIAPPA MUDALIAR, AIR 1969 SC 1068, III) SUNDERLAL MANNALAL VS. NANDRAMDAS DWARKADAS, AIR 1958 IV) CIT VS. MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL.) V) CIT VS. B.N. BHATTACHARGEE & ANR 10 CTR 354 3 ITA NO.1728/PUN/2018 A.Y.2014-15 5. AGGRIEVED WITH THE ORDER OF THE LD. CIT(APPEALS), THE AS SESSEE FILED THE PRESENT APPEAL BEFORE US MENTIONING THE ISSUES RELATING T O VARIOUS FIVE GROUNDS IN THE APPEAL ON RECORD. 6. READING OUT OF THE SAID GROUNDS OF APPEAL, THE LD. COUN SEL SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF CIT(APPEA LS) FOR FRESH ADJUDICATION ON MERITS AFTER GRANTING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE ONCE AGAIN. NARRATING THE FACTS AND DIFFICULTIES OF THE ASSESSEE FOR NOT MAKING HIS APPEARANCE BEFORE THE LD. CIT(APPEALS) . THE LD. AR SUBMITTED THAT IT IS ALL DUE TO COMMUNICATION GAP BETWEEN THE ASSESSEE AND THE CIT(APPEALS). FURTHER, LD. COUNSEL SUBMITTED THAT THIS TIME HE SHALL REPRESENT THE CASE WITHOUT FAIL. REFERRING TO THE PROVISION S OF SECTION 250(6) OF THE ACT, LD. COUNSEL FURTHER SUBMITTED THAT THE CIT(AP PEALS) COULD NOT DISMISS THE APPEAL OF THE ASSESSEE MERELY RELYING ON THE JUDGMENT OF CIT VS. MULTIPLAN INDIA PVT. LTD. (SUPRA.) WITHOUT ADJUDICATING THE ISSUE ON MERITS. 7. ON THE OTHER HAND, LD. DR PLACED RELIANCE ON THE ORDE RS OF THE AUTHORITIES BELOW. 8. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PER USED. I FIND THAT THE ORDER OF THE LD. CIT(APPEALS) CANNOT BE UPHELD AS TH E ISSUE ON MERITS WERE NOT ADJUDICATED BY HIM AS PER THE PROVISIONS OF SEC TION 250(6) OF THE ACT. THEREFORE, IT IS IN THE INTEREST OF JUSTICE, THE MATTE R NEEDS TO BE REMANDED TO THE FILE OF LD. CIT(APPEALS) FOR FRESH ADJUDICATION ON MERITS. ACCORDINGLY, I SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THIS ISSUE TO THE FILE OF THE LD.CIT(APPEALS) TO ADJUDICATE ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. AT TH E SAME TIME, I DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(APPEALS) WITH R ELEVANT DOCUMENTS 4 ITA NO.1728/PUN/2018 A.Y.2014-15 AND EVIDENCES IN SUPPORT OF HIS CASE AND REPRESENT HIS CASE ON LAW/MERITS. IN CASE OF FAILURE TO APPEAR, THE CIT(APPEALS) IS FREE TO DEC IDE THE ISSUE AS HE DEEMS FIT. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED ON 11 TH DAY OF FEBRUARY, 2019. SD/- ( . / D. KARUNAKARA RAO ) ' ACCOUNTANT MEMBER / PUNE; / DATED : 11 TH FEBRUARY, 2019. SB &()!*+,-,$* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE-5, PUNE. 4. THE PR. CIT, PUNE-4, PUNE. 5. !'# $$ %& , ' %& , - ()* , / DR, ITAT, SMC BENCH, PUNE. 6. #+, -. / GUARD FILE. // TRUE COPY // '/ / BY ORDER, $ 0 %* /PRIVATE SECRETARY ' %& , / ITAT, PUNE. 5 ITA NO.1728/PUN/2018 A.Y.2014-15 DATE 1 DRAFT DICTATED ON 11.02.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 12.02.2019 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER