Pathan Attarkhan Fakrulkhan, Beed V. ITO,Wd-2(4), Beed

ITA 203/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49801 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 04-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHANA
• Keywords: Opportunity of being heard
• Section: 148; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER. I.T.A. NO. 203/PN/2010 ASSESSMENT YEAR : 2002-03. PATHAN ATTARKHAN FAKRULKHAN TAGADEGAON ROAD, GEVRAI TQ. GEVRAI DIST. BEED PAN ABWPP 4067 F APPELLANT VS. I.T.O. WARD 2(4) PUNE RESPONDENT APPELLANT BY : SHRI S.N. PURANIK RESPONDENT BY : MS. ANN KAPTHANA O R D E R PER D. KARUNAKARA RAO, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE CIT(APPEALS) AURANGABAD DATED 21-10-2009 FOR A.Y. 200 2-03 ON THE GROUND THAT THE CIT(A) ERRED IN NOT QUASHING THE NOTICE ISSUED U/ S 148 OF THE ACT BY THE A.O. 2. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASS ESSEE SHRI S.N. PURANIK INFORMED THAT THE ASSESSEE WOULD BE HAPPY IF A DIRECT ION IS GIVEN TO THE CIT(A) TO ATTEND THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE VIDE LETTER DATED 21-2-2011. OTHERWISE, HE MENTIONED THAT WHILE THE A SSESSING OFFICER MADE THE ASSESSMENT U/S 144 WHERE THE ASSESSEE WAS NOT PRESENT DURING THE PROCEEDINGS, THE CIT(A) GAVE A FINDING THAT THE ASSESSEE AGREED T O THE ADDITIONS MADE BY THE A.O WHICH CANNOT BE A FACT, AS, FOR ADMITTING THE AD DITIONS, THE ASSESSEE HAS TO BE PRESENT IN THE PROCEEDINGS. WHEN HE IS ABSENT, TH ERE CANNOT BE ANY OCCASION FOR AN ADDITION. FURTHER, HE MENTIONED THAT THE CIT(A ) HAS NOT DISCUSSED THE ISSUE ON MERITS WHILE DISMISSING THE APPEAL OF THE A SSESSEE. FURTHER, THE CIT(A) HAS NOT ATTENDED THE RECTIFICATION PETITION FILED BY THE ASSESSEE ON 21-2-2011. ON THE OTHER HAND, THE LEARNED DR RELIED ON THE ORDERS O F THE REVENUE. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE SEE CONTRADICTION NARRATED BY THE LEARNED CO UNSEL FOR THE ASSESSEE. FOR THIS PURPOSE, THERE IS A NEED FOR ADJUDICATION OF THE ASSESSEES RECTIFICATION ITA NO.203/PN/2010 PATHAN A FAKRULKHAN A.Y. 2002-03 2 APPLICATION FILED U/S 154 OF THE ACT PENDING BEFORE THE CIT(A). ON GOING THROUGH THE FACTS, WE ARE OF THE OPINION THAT THE MAT TER SHOULD BE REFERRED TO THE FILE OF THE CIT(A) NOT ONLY FOR ATTENDING TO TH E ASSESSEES GRIEVANCE BY WAY OF APPLICATION FILED U/S 154 OF THE ACT BUT ALSO TO PASS A SPEAKING ORDER ON MERITS IN LINE WITH SECTION 250(6) OF THE ACT. ACCORDINGL Y, THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE ISSUE AFRESH AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY 2011 SD/- SD/- (I.C. SUDHIR) ( D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED THE 31 ST MAY 2011 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT-AURANGABAD 4. CIT(A) AURANGABAD 5. D.R. ITAT B BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE