M/s. B.D. Sorathia & Co., RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Gandhidham Circle, GANDHIDHAM

ITA 206/RJT/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0137 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND N SONTAKKE
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER. ITA NO. 206/RJT/2015 (ASSESSMENT YEAR: 2009-10) M/S. B. D. SORATHIA & CO., GANDHIDHAM KALPESH S. DOSHI & CO. CHARTERED ACCOUNTANTS, 411, COSMO COMPLEX, MAHILA COLLEGE CIRCLE, RAJKOT 360 001 APP ELLANT VS. ACIT, GANDHIDHAM CIRCLE, GANDHIDHAM-KUTCH RESPONDENT / BY ASSESSEE : SHRI KALPESH DOSHI, A.R. /BY REVENUE : SHRI ARVIND N. SONTAKKE, SR.D.R. /DATE OF HEARING : 06.10.2016 /DATE OF PRONOUNCEMENT : 07 .10.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR A.Y.2009-10 ARISES AGAIN ST CIT(A)-3, RAJKOTS ORDER DATED 25.02.2015 PASSED IN CASE NO. CIT(A)-3/RJT/0034/11-12 IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 19 61; IN SHORT THE ACT. 2. WE NOTICE AT THE OUTSET THAT THE INSTANT APPEAL IS BARRED BY 16 DAYS DELAY IN FILING. THE ASSESSEE HAS PLACED ON RECORD A CONDONATION PETITION ITA NO.206/RJT/2015 (M/S. B. D. SORATHIA & CO. VS. ACIT) A.Y. 2009-10 - 2 - ALONG WITH AFFIDAVIT DATED 01.10.2015 SOLEMNLY AVER RING THEREIN THAT WIFE OF ITS PARTNER, NAMELY, SMT. LAXMIBEN SUFFERED PARALYT IC STROKE DUE TO WHICH HER HUSBAND/PARTNER SHRI JAYRAMBHAI COULD NOT INSTITUTE THE CASE WITHIN THE PRESCRIBED LIMITATION PERIOD. LD. DEPARTMENTAL REP RESENTATIVE IS FAIR ENOUGH IN NOT DISPUTING CORRECTNESS THEREOF. WE THUS COND ONE THE ABOVE SAID DELAY IN FILING OF THIS APPEAL. THE SAME IS TAKEN UP FOR ADJUDICATION ON MERITS. 3. THE ASSESSEE RAISES FOUR SUBSTANTIVE GROUNDS IN ASSAILING CORRECTNESS OF THE LOWER APPELLATE ORDER PASSED EX PARTE AFFIRMING ASSESSING OFFICERS ACTION INTER ALIA IN REJECTING BOOKS OF ACCOUNTS U/S.145(3 ), DISALLOWING INTEREST PAID TO PARTNER OF RS.14,96,336/- AND ESTIMATING GROSS P ROFITS TO THE TUNE OF RS.15,76,496/-; RESPECTIVELY. 4. THE INSTANT CASE FILE REVEALS THAT THE ASSESSEE FIRM IS A CIVIL CONTRACTOR. IT FILED RETURN ON 29.09.2009 DECLARING TOTAL INCOM E AT RS.19,12,630/-. THE ASSESSING OFFICER TOOK UP SCRUTINY. THE SAME ENDED UP IN LATTER TWO ADDITIONS MADE AFTER REJECTION ASSESSEES BOOKS. I T FILED APPEAL. WE NOTICE THAT THE CIT(A) PREPARES A TABULATION CHART OF VARI OUS HEARING CONDUCTED IN THE LOWER APPELLATE PROCEEDINGS ON 18.02.2014, 05.0 3.2014, 03.04.2014, 22.01.2015, 04.02.2015 AND 16.02.2015 TO OBSERVE TH AT THE ASSESSEE HAS NOT COME PRESENT DESPITE VARIOUS OPPORTUNITIES GRANTED. HE THEN PROCEEDS TO UPHOLD ASSESSING OFFICERS FINDINGS LEAVING BEHIND THE ASSESSEE AGGRIEVED. 5. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STAND AGAINST AND IN SUPPORT OF THE LOWER APPELLATE ORDER. THERE IS NO DISPUTE THAT CIT(A) HAS PROCEEDED EX PARTE AGAINST THE ASSESSEE. LAST THREE HEARING IN THE INSTANT CASE FILED HAVE TAKEN PLACE WITHIN A VERY SHORT SPA N OF TIME FROM 22.01.2015 TO 16.02.2015. THE LOWER APPELLATE ORDER READS THA T THE ASSESSEE WAS SERVED THE CORRESPONDING HEARING NOTICE ON 31.12.2000 ONLY . MEANING THEREBY NO SUCH HEARING NOTICES WERE ISSUED FOR THE LATTER TWO DATES. THIS APPEARS TO BE ITA NO.206/RJT/2015 (M/S. B. D. SORATHIA & CO. VS. ACIT) A.Y. 2009-10 - 3 - THE SOLE REASON AS HIGHLIGHTED IN THE COURSE OF HEA RING BEFORE US FOR NEITHER ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVES APPEAR ANCE BEFORE THE CIT(A). WE DEEM IT APPROPRIATE IN LARGER INTEREST OF JUSTIC E IN THIS PECULIAR BACKDROP OF FACTS THAT THE LD. CIT(A) NEEDS TO RE-ADJUDICATE ON THE ENTIRE ISSUE AFRESH AS PER LAW ON MERITS AFTER AFFORDING ADEQUATE OPPORTUN ITY OF HEARING TO THE ASSESSEE. 6. THIS ASSESSEES APPEAL SUCCEEDS FOR STATISTICAL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 07 TH DAY OF OCTOBER, 2016.] SD/- SD/- (AMARJIT SINGH) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 07/10/2016 TRUE COPY S.K.SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT