Sudhir Kantilal Bothara, Pune V. Income-tax Officer,

ITA 1811/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76167 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 08-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: R G NAHAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1811/PN/2013 A.Y. 2010-11 SUDHIR KANTILAL BOTHARA, MZSK & ASSOCIATES, CHARTERED ACCOUNTANTS, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESLEY ROAD, NEAR RTO, PUNE - 411001 PAN: ABCPB6444J APPLICANT VS. ITO, WARD 11(4), PUNE RESPONDENT APPELLANT BY : SHRI R.G. N AHAR RESPONDENT BY : SHRI P.L . PATHADE DATE OF HEARING: 17.02.2014 DATE OF ORDER : 18.02.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-IT/TP, [SHOR T CIT(A)- IT/TP] PUNE, DATED 28.08.2013 FOR A.Y. 2010-11 ON T HE FOLLOWING GROUNDS. 1. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE A ND AS PER PROVISIONS & SCHEME OF THE ACT IT BE HELD THAT, THE EX- PARTE ORDER FOR WANT OF PROSECUTION PASSED BY TH E FIRST APPELLATE AUTHORITY BE HELD IS UNJUSTIFIED, IMPROPER, CONTRARY TO THE PROVISIONS OF THE ACT AND FACTS PRE VAILING IN THE CASE. THE ORDER PASSED BY THE 1 ST APPELLATE AUTHORITY BE CANCELLED. THE APPELLANT BE GRANTED JUST AND PROPER RELIEF IN THIS RESPECT. 2 2. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE A ND AS PER PROVISIONS & SCHEMES OF THE ACT IT BE HELD THA T, THE CLAIM OF THE APPELLANT IS ADMISSIBLE IN TERMS OF PR OVISIONS OF SEC.80IB(10 ) OF THE INCOME TAX ACT TO THE EXTENT O F RS. 12,50,271/-. THE CLAIM BE ALLOWED TO THE APPELL ANT AS PER PROVISIONS OF THE ACT AND FACTS PREVAILING IN T HE CASE. THE APPELLANT BE GRANTED JUST AND PROPER RELIEF IN THIS RESPECT. 3. ON FACTS AND CIRCUMSTANCES PREVAILING IN THE CASE A ND AS PER PROVISIONS & SCHEME OF THE ACT IT BE HELD THAT, SIZE OF THE PLOT OF LAND ON WHICH HOUSING PROJECT IS DEVELO PED AND CONSTRUCTED IS 4500 SQ.MT. AS PHYSICALLY VERIFIED A ND CERTIFIED BY THE COMMISSION APPOINTED BY THE AO, AS PER 7/12 EXTRACT AND INDEX II AND SIZE OF LAND AND SIZE OF THE PLOT OF LAND AS ADOPTED BY THE AO I.E.3340.57 SQ.MT R. IS UNJUSTIFIED, IMPROPER AND CONTRARY TO THE SCHEME OF THE ACT. THE APPELLANT BE GRANTED JUST AND PROPER RELIEF IN THIS RESPECT. 4. THE APPELLANT PRAYS TO BE ALLOWED TO ADD, AMEND, MO DIFY, RECTIFY, DELETE, RAISE ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. AT THE OUTSET OF HEARING, THE LEARNED AUTHORIZED REPRESENTATIVE HAS POINTED OUT THAT THE CIT(A) HAS DECIDED THE ISSUE EXPARTE BY OBSERVING AS UNDER: 2.2 DURING THE DAY OF HEARING, NO ONE ATTENDED NOR ANY REQUEST FOR ADJOURNMENT OF THE CASE WAS RECEIVED. TILL TODAY THE APPELLANT HAS NOT COME WITH REQUEST TO GRANT DA TE FOR HEARING. IN THESE CIRCUMSTANCES, IT IS CLEAR THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTION OF APPEA L. SO, THE SAME SHALL BE SET ASIDE. NOTHING CONTRARY WAS BROUGHT ON RECORD ON BEHALF OF REVENUE. 2.1 FINDING FORCE IN THE SUBMISSION OF LEARNED AUTH ORIZED REPRESENTATIVE, WE ARE OF THE VIEW THAT THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL AN EXPARTE AS DI SCUSSED ABOVE. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ISSUE TO THE CIT(A) WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE AS SESSEE IS ALSO 3 DIRECTED TO COOPERATE IN THE PROCEEDINGS BEFORE THE CONCERNED CIT(A). SINCE WE ARE RESTORING THE MATTER TO THE C IT(A) ON PRELIMINARY ISSUE AS DISCUSSED ABOVE, WE ARE REFRAI NING FROM COMMENTING ON THE ISSUE AT HAND. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 18 TH OF FEBRUARY, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 18 TH FEBRUARY, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-IT/TP, PUNE 4) THE CIT-IT/TP, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE