Lila Thakorbhai Patel, Bharuch V. DCIT,Intl.Taxation, Baroda

ITA 183/SRT/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9251 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL R SHAH SHRI B P K
• Keywords: Opportunity of being heard; Set aside
• Section: 201; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCE, SURAT BEFORE SHRI AMARJIT SINGH, JM & SHRI O.P.MEENA, AM / I .T.A. NO. 183 / SRT /201 7 ( / ASSESSMENT YEAR: 20 10 - 11 ) LILA THAKORBHAI PATEL AT & POST. IIAV, HANSOT BHARUCH C/O BHADRESH SONI SHITAL PARK SOCIETY, OPP. AGRICULTURAL UNIVERSITY, VIJALPORE, NAVSARI - 396450, GUJARAT . / VS. DCIT, INTL. TAXATION 3 RD FLOOR, ROOM NO.331, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD - 380009 . ./ ./ PAN/GIR NO. AEAPP1001J ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 26/ 0 9/ 201 9 / DATE OF PRONOUNCEMENT : 30 /09/ 2019 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 21.06 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 13 , AHMEDABAD [H EREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 10 - 11 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER WITHOUT GIVING SUFFICIENT ASSESSEE BY : SHRI MEHUL R. SHAH REVENUE BY: SHRI B. P. K. PANDA (SR. DR) ITA NO. 183 / SRT /201 7 A.Y.20 10 - 11 2 OPPORTUNITY OF BEING HEARD AND WITHOUT CONSIDERING THE FACTS AND EXPLANATION GIVEN BY THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) HAS ERRED IN NOT ADJUDICATING GROUNDS OF APPEAL. HE OUGHT TO HAVE PASSED THE SPEAKING ORDER AFTER GIVING THE REASON FOR HIS DECISION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN TREATING THE ASSESSEE'S APPEAL AS INVALID, EVEN THOUGH THE ASSESSEE WAS NOT REQUIRED TO FILE HER APPEAL BY E - FILLING PROCEDURE AS PER NOTIFICATION NO. S.0.637(E) DATED 01.03.2016 AND RULE 45 OF THE I.T. RULES,1962. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER AND THEREBY CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE CASE OF ASSESSEE U/ S 147/148 OF THE ACT AND PASSING ORDER U/S. 144 R.W.S. 147 OF THE ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX - PARTE ORDER AND THEREBY CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS. 21,07,143/ - ON ACCOUNT OF INCOME FROM CAPITAL GAIN(STCG) THOUGH THE ASSESSEE WAS NOT THE OWNER OF ANY PROPERTY AND HAD NOT SOLD ANY PROPERTY IN THE YEAR UNDER CONSIDERATION. 6. IT IS THEREFORE PR AYED THAT ASSESSMENT FRAMED U/S 144 R.W.S. 147 OF THE ACT MAY KINDLY BE QUASHED AND/OR ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) MAY PLEASE BE DELETED. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE CO URSE OF HEARING OF THE APPEAL. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . WE NOTICED THAT THE CIT(A) DID NOT DECIDE THE CASE ON MERITS. THE ASSESSEE FILED THE APPE AL MANUALLY BEFORE THE CIT(A) - 13 ON 27.06.2017 AGAINST THE ORDER OF THE AO DATED 22.03.2016 FOR THE A.Y.2010 - 11 . THE APPEAL NOWHERE SEEMS DELAYED WHEN FILED BEFORE THE CIT(A) MANUALLY. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE BASIS OF THIS FACT THAT THE ASSESSEE DID NOT F ILE THE RETURN ELECTRONICALLY AND APPEAL ALSO BEFORE THE CIT(A) ELECTRONICALLY. TECHNICALLY FLAW CANNOT BE ITA NO. 183 / SRT /201 7 A.Y.20 10 - 11 3 TREATED AS HURDLE FOR THE EXECUTION OF THE JUSTICE. THE APPEAL FILED BY ASSESSEE BEFORE THE CIT(A) NOWHERE SEEMS TIME BARRED. THE ISSUES RAISED BY AS SESSEE ARE REQUIRED TO BE DECIDED ON MERITS. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER OF CONTROVERSY AFRESH BY GIVING AN OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . 4 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURP OSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 30 /09 /2019 . SD/ - SD / - ( O. P. MEENA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED : 30 /09/ 2019/VIJAY PAL SINGH , SR.PS COPY OF ORDER SENT TO - ASSESSEE/ AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT