Mainak Comtrade Pvt. Ltd, Ahmedabad V. ITO, Ward-2(1)(4), Ahmedabad

ITA 2215/AHD/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8641 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA; MEHUL TELERA
• Keywords: Principle of natural justice

Judgement Text

ITA NO. 2215/AHD/2018 MAINAK COMTRADE PVT LTD VS. ITO ASSESSMENT YEAR: 2012-13 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR VP AND MAHAVIR PRASAD JM] ITA NO. 2215/AHD/2018 ASSESSMENT YEAR: 2012-13 MAINAK COMTRADE PVT LTD ..............APP ELLANT 9, 3 RD FLOOR, HARSIDHH CHAMBERS, INCOME TAX CROSS ROAD, ASHRAM ROAD, AHMEDABAD-380009 [PAN : AAGCM 5750 N] VS INCOME TAX OFFICER ...................RESPO NDENT WARD 2(1)(4), AHMEDABAD APPEARANCES BY SN DIVATIA & MEHUL TELERA FOR THE APPELLANT MUDIT NAGPAL FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : DECEMBER 21, 2018 DATE OF PRONOUNCEMENT : DECEMBER 21, 2018 O R D E R PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER DATED 25 TH SEPTEMBER 2018, IN THE MATTER OF ASSESSMENT UNDER SECTION 143 (3) R.W.S. 147 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2012-13. 2. THE GRIEVANCES RAISED ARE AS FOLLOWS:- 1.1 THE ORDER PASSED U/S. 250 ON 25.09.2018 FOR A .Y.2012-13 BY CIT(A)-2, AHMEDABAD DISPOSING OFF THE APPEAL EX-PARTE FOR ALL EGED NON-COMPLIANCE TO THE NOTICES OF HEARING AND UPHOLDING THE ADDITIONS AGGREGATING TO RS.39,11,74,608/- MADE BY AO IS WHOLLY ILLEGAL, UNL AWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AN D OR ON FACTS IN DISPOSING OFF THE APPEAL EX-PARTE ON THE GROUND OF NON-COMPLI ANCE TO THE NOTICES OF HEARING, THOUGH THERE WAS A SUFFICIENT CAUSE FOR AL LEGED NON-COMPLIANCE AS DESCRIBED IN THE APPEAL MEMO. ITA NO. 2215/AHD/2018 MAINAK COMTRADE PVT LTD VS. ITO ASSESSMENT YEAR: 2012-13 PAGE 2 OF 2 1.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, HIE LD.CIT(A) OUGHT NOT TO HAVE DISPOSE OFF ME APPEAL E X-PARTE. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND O N FACTS IN CONFIRMING ADDITIONS AGGREGATING TO RS.39,11,74,608/- AS UNDIS CLOSED INCOME THOUGH THE APPELLANT HAD FILED NECESSARY EVIDENCE. THE LD. CIT (A) HAS FAILED TO APPRECIATE THAT THE AO HAD NEITHER SUPPLIED THE ENT IRE MATERIAL RELIED UPON BY HIM FOR MAKING IMPUGNED ADDITIONS NOR ALLOWED ANY O PPORTUNITY OF CROSS- EXAMINING THE CONCERNED PARTIES. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD ADDITIONS AGGREG ATING TO RS.39,11,74,608/- AS UNDISCLOSED INCOME. 3.1 THE LD.CIT(A) HAS FAILED TO APPRECIATE THAT TH E NOTICE OF REOPENING U/S.148 DATED 30.03.2017 AS WELL AS THE PROCEEDINGS U/S. 147 WERE ILLEGAL AND UNLAWFUL IN VIEW OF THE CONDITIONS PRECEDENT FOR RE OPENING WERE NOT FULFILLED. 3. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE HE ARING NOTICES ISSUED IN THIS CASE WERE SENT ON THE ADDRESS OTHER THAN THE ONE SE T OUT IN FORM NO.35 AND THAT FOR THIS REASON THE ASSESSEE COULD NOT COMPLY WITH THE NOTICES ISSUED BY THE CIT(A). IN THESE CIRCUMSTANCES, IN OUR CONSIDERED VIEW, THE RI GHT COURSE OF ACTION WILL BE TO RECALL THE IMPUGNED EX-PARTE ORDER AND REMIT THE MATTER TO THE FILE OF THE CIT( A) FOR FRESH ADJUDICATION ON MERITS. LEARNED DEPARTMENTAL REPRESENTATIVE HAS GRACIOUSLY AGREED TO THIS SUGGESTION. 4. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, THE IMPUGNED EX-PARTE ORDER OF THE CIT(A) IS HEREBY SET ASIDE AND THE MAT TER IS REMITTED TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 21 ST DAY OF DECEMBER, 2018. SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, DATED THE 21 ST DAY OF DECEMBER, 2018 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD