Shri Rameshbhai Naraindas Nankani, Ahmedabad V. The Income tax Officer,Ward-11(4), Ahmedabad

ITA 1761/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1871 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Opportunity of being heard
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 1760/AHD/2011 / ASSESSMENT YEAR: 2008-09 SHRI RAMESHLAL NARAINDAS NANKANI HUF 271, NEW CLOTH MARKET, O/S. RAIPUR GATE, AHMEDABAD .. APPEL LANT PAN : AACHN 3875 N VS INCOME TAX OFFICER, WARD 11 (4), AHMEDABAD .. RESPONDENT ./ ITA NO. 1761/AHD/2011 / ASSESSMENT YEAR: 2008-09 SHRI RAMESHLAL NARAINDAS NANKANI 271, NEW CLOTH MARKET, O/S. RAIPUR GATE, AHMEDABAD .. APPEL LANT PAN : AAMPN 0426 F VS INCOME TAX OFFICER, WARD 11 (4), AHMEDABAD .. RESPONDENT ASSESSEE(S) BY SHRI DEEPAK SONI, AR REVENUE BY SHRI DINESH SINGH, SR. DR. / DATE OF HEARING 05/04/2016 /DATE OF PRONOUNCEMENT 07/04/2016 / O R D E R PER SHAILENDRA K. YADAV, JUDICIAL MEMBER: THESE TWO APPEALS FILED BY DIFFERENT ASSESSEES A RE DIRECTED AGAINST RESPECTIVE ORDERS OF THE COMMISSIONER OF IN COME TAX ITA NOS. 1760 & 1761/AHD/2011 RAMESH N NANKANI HUF & RAMESH N NANKANI VS ITO AY : 2008-09 - 2 - (APPEALS), XVI, AHMEDABAD OF EVEN DATED 10.06.2011 FOR ASSESSMENT YEAR 2008-09. BOTH THESE APPEALS INVOLVE COMMON ISS UES, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 1760/AHD/2011, AY : 2008-2009 BY ASSESSEE SHRI RAMESHLAL NARAINDAS NANKANI HUF 2. IN THIS APPEAL, THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS:- 1.0 THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS BAD IN LAW. THE ORDER IS CONTRARY TO T HE PROVISIONS OF LAW AND THE FACTS OF YOUR APPELLANT'S CASE. IT I S SUBMITTED THAT IT BE SO HELD NOW. 1.1 THE APPELLANT SUBMITS THAT ALL THE HEARINGS WER E DULY COMPLIED WITH. THE ALLEGATIONS REGARDING NON-COMPLI ANCE ARE FACTUALLY INCORRECT AND IN CONSEQUENCE THEREOF ORDE R ON EX-PARTE BASIS IS ALSO ERRONEOUS. THE ORDER BE QUASHED. 2.0 THE CIT(A) ERRED IN UPHOLDING DISALLOWANCE OF RS.64,41,401/- U/S 40(A)(IA). THE APPELLANT SUBMITS THAT DISALLOWANCE MADE BY THE ASSESSING OFFICER IS CONTR ARY TO THE FACTS AND UNSUSTAINABLE IN THE EYES OF LAW. THE DIS ALLOWANCE BE QUASHED. 2.1 THE APPELLANT SUBMITS THAT UNDER THE FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE THERE WAS NO DEFAULT IN THE MATTER OF DEDUCTION OF TAX AT SOURCE. THE APPELLANT SUBMITS T HAT IN VIEW OF FACTS IN CASE OF THE APPELLANT NEITHER PROVISIONS O F SECTION 194A/194C ARE ATTRACTED AND CONSEQUENCE THEREOF PRO VISIONS OF SECTION 40(A)(IA) WERE NOT ATTRACTED AND NO DISALLO WANCE OUGHT TO HAVE BEEN MADE. THE DISALLOWANCE MADE BY THE ASS ESSING OFFICER BE DELETED. 2.2 THE APPELLANT WITHOUT PREJUDICE TO ABOVE FURTHE R SUBMITS THAT DISALLOWANCE IN ANY EVENT IS EXCESSIVELY HIGH AND IT BE DIRECTED TO BE SUBSTANTIALLY REDUCED. IT IS SUBMITT ED THAT IT BE SO HELD NOW. ITA NOS. 1760 & 1761/AHD/2011 RAMESH N NANKANI HUF & RAMESH N NANKANI VS ITO AY : 2008-09 - 3 - 2.3 THE APPELLANT WITHOUT PREJUDICE TO ABOVE SUBMIT S THAT THE AO BE DIRECTED TO ALLOW DEDUCTION IN RESPECT OF EXP ENSES IN ACCORDANCE WITH PROVISO TO SECTION 40(1)(IA). 3.0 THE CIT(A) ERRED IN UPHOLDING DISALLOWANCE OF R S.4165/- OUT OF EXPENSES INCURRED FOR THE PURPOSE OF THE BUSINES S. THE APPELLANT SUBMITS THAT EACH AND EVERY EXPENDITURE W AS INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUSIN ESS AND THEREFORE FULLY DEDUCTIBLE IN COMPUTATION OF THE TO TAL INCOME. THE DISALLOWANCE OF RS.4165/- UPHELD BY THE CIT(A) BE DELETED. 3.1 THE APPELLANT WITHOUT PREJUDICE TO ABOVE FURTHE R SUBMITS THAT THE DISALLOWANCE UPHELD BY THE CIT(A) IS EXCES SIVELY HIGH. THE APPELLANT SUBMITS THAT IT BE SO HELD NOW. 3.2 THE APPELLANT WITHOUT PREJUDICE TO ABOVE SUBMIT S THAT THE AO BE DIRECTED TO ALLOW DEDUCTION IN RESPECT OF EXP ENSES IN ACCORDANCE WITH PROVISO TO SECTION 40 (A)(IA). 4.0 THE CIT(A) ERRED IN UPHOLDING COMPUTATION OF TH E DEMAND IN THE CASE OF THE APPELLANT. IT IS SUBMITTED THAT THE ASSESSING OFFICER BE DIRECTED TO ALLOW CORRECT CREDIT OF TAX DEDUCTED AT SOURCE AS PER LAW. IT IS FURTHER SUBMITTED BY THE A PPELLANT THAT THE ASSESSING OFFICER BE DIRECTED TO DELETE INTERES T CHARGED BY THE ASSESSING OFFICER BY INVOKING PROVISIONS OF SECTION S 234B AND 234C. IT IS SUBMITTED THAT APPROPRIATE RELIEF BE AL LOWED AS PER THE PROVISIONS OF LAW. 3. THE MAIN CONTENTION OF THE ASSESSEE BEFORE US IS THAT THOUGH THE LD. AUTHORIZED REPRESENTATIVE APPEARED ON THE DATE FIXED FOR HEARING BEFORE THE CIT(A) ON 08.06.2011, THE ORDER WAS PASS ED BY THE CIT(A) EX-PARTE. BEFORE US, THE LD. AUTHORIZED REPRESENT ATIVE SUBMITTED THAT HE HAS ATTENDED BEFORE THE CIT(A) ON 08.06.2011 ON BEHALF OF ASSESSEE, WHEREAS THE CIT(A) WAS NOT AVAILABLE ON THE SAID DA TE AND THE HEARING COULD NOT TAKE PLACE AND IN THIS REGARD, HE PLACED ON RECORD A LETTER DATED 28.06.2011 ADDRESSED TO CIT(A). THUS, THE LD. AUTHORIZED REPRESENTATIVE CONTENDED BEFORE US THAT SUFFICIENT OPPORTUNITY OF ITA NOS. 1760 & 1761/AHD/2011 RAMESH N NANKANI HUF & RAMESH N NANKANI VS ITO AY : 2008-09 - 4 - HEARING WAS NOT ALLOWED TO THE ASSESSEE TO PRESENT HIS CASE; SO, THE ORDER OF THE CIT(A) BE SET ASIDE. ON THE OTHER HAN D, LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW. 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND P ERUSING THE MATERIAL ON RECORD, WE FIND FORCE IN THE SUBMISSION OF ASSESSEE THAT THE ASSESSEE WAS NOT ALLOWED SUFFICIENT OPPORTUNITY OF BEING HEARD. IN THE PRESENT CASE, WE FIND THAT THE CIT(A) HAS DECIDED T HE APPEAL OF THE ASSESSEE EX-PARTE, INSPITE OF THE FACT THAT THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS PRESENT ON DATE FIXED FOR HEARING BEFORE HIM, WHEREAS THE CIT(A) WAS NOT AVAILABLE ON THE DATE FIXED FOR HEARING. WE CANNOT ENCOURAGE THE APATHY TOWARDS PR OCEEDINGS BEFORE THE AUTHORITIES BELOW. HOWEVER, AT THE SAME TIME, DUE OPPORTUNITY OF HEARING IS ALSO ESSENTIAL FOR JUSTIC E. SO, IN THE INTEREST OF JUSTICE, THE ORDER OF CIT(A) IS SET ASIDE SUBJECT T O PAYMENT OF COST OF RS. 10,000/- TO BE DEPOSITED IN LEGAL AID OF GUJARA T HIGH COURT. THE MATTER IS RESTORED TO CIT(A) WITH DIRECTION TO DECI DE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEA RING TO THE ASSESSEE. SINCE WE ARE RESTORING THE MATTER TO CIT (A) ON PRELIMINARY ISSUE, WE ARE REFRAINING TO COMMENT ON MERIT OF THE ISSUE AT HAND. 5. AS A RESULT, THIS APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ITA NO. 1761/AHD/2011, AY : 2008-2009 BY ASSESSEE SHRI RAMESHLAL NARAINDAS NANKANI 6. SIMILAR ISSUE AS WE DEALT WITH IN ITA NO.1760/A HD/2011 IN THE CASE OF SHRI RAMESHLAL NARAINDAS NANKANI-HUF(SUPRA) AROSE IN THIS APPEAL ALSO. FACTS BEING SIMILAR, SO FOLLOWING T HE SAME REASONING AS ITA NOS. 1760 & 1761/AHD/2011 RAMESH N NANKANI HUF & RAMESH N NANKANI VS ITO AY : 2008-09 - 5 - DISCUSSED ABOVE IN ITA NO.1760/AHD/2011, WE RESTORE THIS MATTER ALSO TO THE FILE OF CIT(A) WITH SIMILAR DIRECTIONS IN ITA NO.1760/AHD/2011(SUPRA). 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 7TH APRIL, 2016 AT AHMEDABAD SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (SHAILENDRA K. YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/04/2016 BIJU T., PS !'# $#! / 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