M/s. Swaminarayan Builders, Ahmedabad V. The Income tax Officer,(OSD)Range-9, Ahmedabad

ITA 219/AHD/2011

• Counselvise Citation: 21920514 RSA 2011
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 27-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASEEM THAKKAR SHRI S K GUPTA
• Keywords: Principle of natural justice

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , . .!'#$, % & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER APPEAL(S) BY APPELLANT VS. RESPONDENT SL. NO(S). ITA NO(S) ASSESSMENT YEAR APPELLANT (S) RESPONDENT(S) 1. 219/AHD/2011 2007-08 M/S.SWAMINARAYAN BUILDERS DHARMADEV HOUSE SHYAMAL CROSS ROADS SATELLITE AHMEDABAD PAN :ABCFS 9622 M THE ITO(OSD) RANGE-9 AHMEDABAD 2. 220/AHD/2011 2007-08 M/S.SATYA SANKALP DEVELOPERS DHARMADEV HOUSE SHYAMAL CROSS ROADS SATELLITE AHMEDABAD PAN:ABEFS0080P THE ITO(OSD) RANGE-9 AHMEDABAD 3. 221/AHD/2011 2007-08 NETRA RESIDENCY DHARMADEV HOUSE SHYAMAL CROSS ROADS SATELLITE AHMEDABAD PAN:AAFFN 6226J THE ASST.CIT (OSD) CIRCLE-9 AHMEDABAD ASSESSEE(S) BY : SHRI ASEEM THAKKAR REVENUE BY : SHRI S.K.GUPTA, CIT-DR '( ) *% / / / / DATE OF HEARING : 18/11/2011 ,'- ) *% / DATE OF PRONOUNCEMENT : 25/11/2011 . / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : IN ALL THESE THREE APPEALS, THE LD.CIT(A)-XV, AHM EDABAD VIDE ORDERS RESPECTIVELY DATED 24/11/2010 & 25/11/2010 P ASSED FOR ITA NOS.219,220 & 221/AHD/2011 SWAMINARAYAN BUILDERS & OTHERS(2) VS. ITO ASST.YEAR 2007-08 - 2 - ASSESSMENT YEAR 2007-08 HAVE DISMISSED THE APPEALS ON THE GROUND OF NON-APPEARANCE/ NON-ATTENDANCE OF APPELLATE PROCEED INGS . IT IS EVIDENT FROM THE IMPUGNED ORDERS OF LD.CIT(A) THAT SEVERAL OPPORTUNITIES OF HEARING WERE GRANTED TO THE ASSESSEE BUT DESPITE AL L THOSE OPPORTUNITIES, ONE AFTER ANOTHER ADJOURNMENTS WERE SOUGHT, BUT NO PROPER COMPLIANCE WAS MADE. RESULTANTLY, THOSE APPEALS WERE DISMISSE D. 2. NOW BEFORE US, LD.AR MR.ASEEM THAKKAR HAS CONTES TED THAT ILL- HEALTH WAS ONE OF THE REASON OF NON-APPEARANCE BEFO RE THE FIRST APPELLATE AUTHORITY, HOWEVER, THE ASSESSMENT PROCEEDINGS WER E ATTENDED BEFORE THE ASSESSING OFFICER BY FILING THE REQUISITE DETAILS A VAILABLE AT THAT TIME. LD.AR MR.ASEEM THAKKAR HAS SINCERELY EXPRESSED HIS REGRETS OF NON- APPEARANCE WHICH, ACCORDING TO HIM, WAS CAUSED DUE TO UNAVOIDABLE CIRCUMSTANCES AT THAT TIME. NOW HE HAS PLEADED THA T AT LEAST AN OPPORTUNITY MAY KINDLY BE GRANTED SO THAT THOSE APP EALS CAN BE DECIDED ON MERITS. 3. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LD.DR MR.S.K.GUPTA HAS PLACED RELIANCE ON THE ORDER OF TH E ASSESSING OFFICER AND VEHEMENTLY OPPOSED THE REQUEST OF RESTORATION O F THESE APPEALS TO THE STAGE OF FIRST APPELLATE AUTHORITY. ACCORDING TO HI M THESE APPELLANTS DO NOT DESERVE ANY SYMPATHY SINCE THEY HAVE DELIBERATE LY AVOIDED THE PROCEEDINGS BOTH BEFORE THE A.O. AND LD CIT(A). ITA NOS.219,220 & 221/AHD/2011 SWAMINARAYAN BUILDERS & OTHERS(2) VS. ITO ASST.YEAR 2007-08 - 3 - 4. UNDISPUTEDLY IN ALL THESE APPEALS, THE LEARNED C IT(APPEALS) HAD GRANTED FEW OPPORTUNITIES OF HEARING AND ULTIMATELY FOR WANT OF COMPLIANCE SHE HAD HELD THAT THERE WAS NO OPTION L EFT BUT TO DISMISS ALL THESE APPEALS BY CONFIRMING THE ADDITIONS MADE BY T HE ASSESSING OFFICER. IN ALL THESE APPEALS, THE APPELLANTS GRIEVANCES TH ROUGH GROUND NOS.1 & 2 ARE THAT THE EX-PARTE DECISION OF LD.CIT(A) WAS AGAINST THE NATURAL JUST ICE BECAUSE AN ADJOURNMENT APPLICATION WAS MOVED SEEKIN G TIME TO FILE CERTAIN DETAILS, HOWEVER, INSTEAD OF GRANTING FURTH ER TIME AN EX-PARTE ORDER WAS MADE BY THE LEARNED CIT(APPEALS). IF WE CONSIDER THE EXPRESSED PROVISION OF SECTION 250(6) OF THE I.T.AC T, THEN IT IS EXPECTED FROM THE FIRST APPELLATE AUTHORITY TO STATE THE POI NTS ARISING IN THE APPEAL AND THEN STATE THE REASONS BEFORE ARRIVING AT A DEC ISION. IN OTHER WORDS, PROVISIONS OF SECTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLE OF NATURAL JUSTICE AND IN OUR CONSIDERED OPINION, SUCH A PROVI SION IS CLEARLY MANDATORY IN NATURE. IN THE LIGHT OF THE ADJOURNME NTS SOUGHT BY THESE APPELLANTS AND THE FACTS NARRATED, A DISTINCTION CA N BE DRAWN BETWEEN A CASE WHERE THE ADJOURNMENTS WERE SOUGHT IN A CASUAL OR NON-SERIOUS MANNER AND A CASE WHERE AN ADJOURNMENT WAS SOUGHT W ITH SERIOUSNESS, ASSIGNING CERTAIN SPECIFIC REASONS, WITH THE INTENT ION TO SUPPLY THE REQUISITE INFORMATION . WHEREAS IN THE FORMER, CON SIDERING THE PREJUDICES TO THE OTHER SIDE, IT WILL BE RELEVANT, NOT TO BE COMMONLY LENIENT. BUT IN THE LATER CASE, WHEN ADJOURNMENTS W ERE SOUGHT WITH SPECIFIC PURPOSES, THEN NO SUCH CONSIDERATION MAY A RISE, HENCE IN SUCH CASES THE APPLICANT DESERVES A LIBERAL APPROACH. A NYWAY, NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COU RTS ARE FULLY EMPOWERED TO EXERCISE ITS JURISDICTION ON THE FACTS OF EACH CASE, ITA NOS.219,220 & 221/AHD/2011 SWAMINARAYAN BUILDERS & OTHERS(2) VS. ITO ASST.YEAR 2007-08 - 4 - NEVERTHELESS, KEEPING IN MIND THE EXPRESSION SUFFI CIENT AND REASONABLE OPPORTUNITY BE GRANTED WITH THE OBJECT OF ADVANCIN G THE PRINCIPLE OF SUBSTANTIAL JUSTICE. IN OUR CONSCIENTIOUS OPINION, SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE. WE ARE, THEREFORE, OF THE VIEW T HAT ONCE THE EXPRESSION SUFFICIENT OPPORTUNITY HAS BEEN USED, THEN SUCH EXPRESSION SHOULD RECEIVE A LIBERAL CONSTRUCTION. MOREOVER, W E KNOW THAT GENERALLY A LITIGANT PURSUE THE LITIGATION WITH DUE DILIGENCE AND ORDINARILY DO NOT ALLOW ITS APPEAL TO BE LOST BY DELIBERATELY DEFAULT ING IN PURSUING HIS CASE. USUALLY A VIGILANT LITIGANT TAKES REASONABLE STEPS TO SAFE-GUARD HIS INTEREST. AS FAR AS THE INSTANT THREE APPEALS ARE CONCERNED, THOUGH THE APPELLANTS APPEARED TO BE NOT FAIRLY VIGILANT BUT T HIS FACT CAN ALSO NOT BE IGNORED THAT THE APPELLANTS WERE IN POSSESSION OF S OME INFORMATION AND/OR DETAILS; WHICH THEY WANTED TO FILE; BUT DUE TO SOME UNAVOIDABLE CIRCUMSTANCES THOSE DETAILS/ EXPLANATIONS COULD NOT BE FILED. RATHER, IN THE CASE OF M/S.SATYA SANKALP DEVELOPERS A COMPILAT ION CONTAINING 58 PAGES IS PLACED BEFORE US TO DEMONSTRATE THAT THOSE DETAILS AND EVIDENCES ARE ALL PRIME IMPORTANCE WHICH OUGHT TO HAVE BEEN A DJUDICATED AT THE FIRST APPELLATE STAGE. LD.AR MR.ASEEM THAKKAR HAS ALSO STATED WITH FULL SENSE OF RESPONSIBILITY THAT IN RESPECT OF OTHER TW O APPELLANTS REQUISITE DETAILS HAVE ALREADY BEEN IN POSSESSION AND IF AN O PPORTUNITY BE KINDLY GRANTED, THEN THE SAME SHALL BE FURNISHED WITHOUT A NY DELAY. ITA NOS.219,220 & 221/AHD/2011 SWAMINARAYAN BUILDERS & OTHERS(2) VS. ITO ASST.YEAR 2007-08 - 5 - 5. AS FAR AS THE CONDUCT OF THESE APPELLANTS ARE CO NCERNED, NORMALLY THE LAW DO NOT APPROVE THE SAME. BUT THIS FACT CAN ALSO BE NOT DENIED THAT UNLIKE CIVIL AND CRIMINAL DISPUTES IN THE INCOME-TA X PROCEEDINGS, THE REVENUE AUTHORITIES ARE EXPECTED TO GET AT THE TRUT H AFTER PROPER INVESTIGATION AND ENQUIRY. HENCE, THE FIRST APPELLA TE AUTHORITY IS ALSO EXPECTED TO DECIDE AN ISSUE ON PROPER CONSIDERATIO N OF THE MATERIAL PLACED BEFORE HIM. THERE HAS TO BE AN ADJUDICATION ON MERITS. THEREFO RE, IN THE CASE OF J.K.SYNTHETICS LTD. VS. COLLECTOR OF CENTRAL EXCISE REPORTED AT 142 CTR 521 (SC), IT WAS HELD THAT APART FROM TH E INHERENT POWER OF PASSING A JUDGMENT, EVERY TRIBUNAL AND COURT IS CON STITUTED TO DO JUSTICE. THEY ARE ALSO CLOTHED WITH THE POWER TO SET ASIDE A N ORDER PASSED EX- PARTE , IF IT IS FOUND THAT THE RESPONDENT HAD FOR SUFFICI ENT CAUSE BEEN UNABLE TO APPEAR, SO THAT TO SECURE THE ENDS OF JUS TICE. RESULTANTLY, IN THE FITNESS OF CIRCUMSTANCES, WE DEEM IT PROPER TO REST ORE THE OTHER GROUNDS, WHICH PERTAINED TO THE MERITS OF THE CASE, BACK TO THE STAGE OF FIRST APPELLATE AUTHORITY TO BE DECIDED DE NOVO AFRESH AS PER LAW. BUT SIMULTANEOUSLY, TO STRIKE THE RIGHT BALANCE, WE HER EBY DIRECT THESE APPELLANTS TO SUO MOTU APPEAR BEFORE THE LEARNED CIT(APPEALS) ON OR BEFORE THE FIRST WEEK OF FEBRUARY-2012 WITHOUT WAIT ING FOR ANY COMMUNICATION OR SERVICE OF NOTICE OF HEARING FROM THE REVENUE DEPARTMENT. THIS DATE IS HEREBY GIVEN BY US AS CON SENTED BY THE LD.AR AND WE EXPECT DUE COMPLIANCE WITH-OUT DILLY-DALLY O R DAWDLE. THESE APPELLANTS ARE DIRECTED TO PRODUCE ALL THE EVIDENCE S AND BOOKS OF ACCOUNT AS REQUIRED UNDER LAW ON THE DAY OF HEARING INSTEAD OF EXPECTING ANY COMMUNIQU FROM THE SIDE OF THE REVENUE AUTHORITIES . WE ALSO DIRECT ITA NOS.219,220 & 221/AHD/2011 SWAMINARAYAN BUILDERS & OTHERS(2) VS. ITO ASST.YEAR 2007-08 - 6 - THESE APPELLANTS NOT TO SEEK FRIVOLOUS ADJOURNMENT AND GET THESE APPEALS FINALIZED AT AN EARLY DATE. NEVERTHELESS, LEARNED CIT(A) OR THE REVENUE AUTHORITIES ARE AT LIBERTY TO ISSUE NECESSARY NOTIC ES, IF DEEM FIT, AS PER LAW, SO THAT THE ISSUES INVOLVED CAN BE RESOLVED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ALL THE THREE APPEALS MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES ONLY. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 25/ 11 /2011 /*..', .'../ T.C. NAIR, SR. PS . ) . ) . ) . ) 01 2 1- 01 2 1- 01 2 1- 01 2 1-/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 0534 / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-XV, AHMEDABAD 5. 19! 0' , , / LEARNED DEPARTMENTAL REPRESENTATIVE, ITAT, AHMEDABAD 6. !$ :( / GUARD FILE. .' .' .' .' / BY ORDER, 51 0 //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..21./11/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/11/11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.25/11/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25/11/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER