Shri Kashirambhai B.Patel, Surat V. I.T.O. Ward-3(3)(3), Surat

ITA 178/SRT/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3008 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPEND RA KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM ./ ITA NO.178/SRT/2019 ( / ASSESSMENT YEAR: (2010-11) (VIRTUAL COURT HEARING) SHRI KASHIRAMBHAI B PATEL, 97, GIRDHARWAR SOCIETY 3, UDHNAMAGDALLA ROAD, SURAT 395002. V S. INCOME TAX OFFICER, WARD-3(3)(3), AAYAKARBHAWAN,MAJURA GATE, SURAT-395002 ./ ./PAN/GIR NO.: ADLPP 9060 B (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI SAPNESH R SHETH, C.A RESPONDENT BY : SHRI DEEPENDRA KUMAR SR.DR / DATE OF HEARING : 25/10/2021 / DATE OF PRONOUNCEMENT : 26/10/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2010- 11, IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-3, SURAT DATED 13.02.2019, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), DATED 28.11.2017. 2.AT THE OUTSET ITSELF, LEARNED COUNSEL FOR THE ASSESSEE,ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT DURING THE APPELLATE STAGE THE NOTICES OF HEARING WERE NOT SERVED UPON THE ASSESSEE, THEREFORE ASSESSEE COULD NOT APPEAR BEFORE THE LD CIT(A). THE ASSESSEE HAD OPTED THE OPTION IN FORM NO. 35 THAT NOTICE OF HEARINGS SHOULD NOT BE SENT THROUGH E-MAIL, HOWEVER LD CIT(A) SENT NOTICES THROUGH E- MAIL. IN ASSESSMENT YEAR 2010-11 THERE WAS AN OPTION IN FORM NO.35, WHETHER ASSESSEE WANTS PHYSICAL DELIVERY OF NOTICE BY POST OR NOTICE SHOULD BE SENTBY E- MAIL. THE ASSESSEE OPTED THE OPTION THAT NOTICES SHOULD BE SENT THROUGH POST AND NOT BY E-MAIL, THEREFORE, NOTICES FOR HEARINGS COULD NOT BE SERVED ON THE ASSESSEE. PAGE | 2 ITA NO.178/SRT/2019 A.Y. 10-1 1 SH. KASHIRAMBHAI B PATEL AS A RESULT, THE ASSESSEE COULD NOT REPRESENT ITS CASE BEFORE LD. CIT(A) AND THUS ORDER OF LD CIT(A) IS AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THEREFORE, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 3. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 4.WE HAVE HEARD BOTH THE PARTIES AND WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) R.W.S 147 OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDER AND NON- SPEAKING ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. WE NOT THAT LD. CIT(A) HAS NOT DECIDED THE ISSUES GROUND-WISE IN RESPECT OF THE GROUNDS RAISED BY THE ASSESSEE IN MEMO OF APPEAL AS PER THE MANDATE OF PROVISIONS OF SECTION 250(6) OF THE ACT. THE LD. CIT(A) HAS NOT EXAMINED ASSESSMENT RECORDS AND RELEVANT DOCUMENTS, AND HAS NOT PASSED ANY SPEAKING ORDER. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESSEE HAS NOT GIVEN OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED ON 26/10/2021 BY PLACING THE RESULT ON THE NOTICE BOARD. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT/ / DATE:26/10/2021 DKP OUTSOURCING SR.P.S.