Shri Mahendra Dudhnath Yadav, Ahmedabad V. The Income tax Officer,Ward-14(2), Ahmedabad

ITA 2261/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72835 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: PF JAIN
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO.2261/AHD/2011 SHRI MAHENDRA DUDHNATH YADAV, A/93, PRATHANA BUNGLOW, AMBEDKAR HALL, SARASPUR, AHMEDABAD PAN: AAGPY 9002N V/S. THE INCOME TAX OFFICER, WARD 14(2), AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : S/SHRI J.P. JHANGID, SR.D.R. ASSESSEE(S) BY : SHRI P.F. JAIN, A.R. / DATE OF HEARING : 23/12/2013 / DATE OF PRONOUNCEMENT: 10/01/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF LEARNED CIT(A)-XXI, AHMEDABAD, DATED 10.09.2012. THE APPELLANT HAS RAISED THREE MAIN GROUNDS, REPRODUCED HEREUNDER: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND O N FACTS IN DISMISSING THE APPEAL OF THE ASSESSEE ON TECHNICAL GROUNDS OF DELAY INFILLING OF APPEAL AND NON FILING OF GROUNDS OF AP PEAL. 2. HE HAS ERRED IN LAW AND ON FACTS IN NOT DECIDING THE APPEAL ON MERITS AND NOT CONSIDERING THE WRITTEN SUBMISSION F URNISHED. 3. ON THE FACTS THE APPELLANT OUGHT TO HAVE BEEN GR ANTED FURTHER OPPORTUNITY OF BEING HEARD IN THE INTEREST OF NATUR AL JUSTICE AND HIS APPEAL OUGHT TO HAVE BEEN ALLOWED. 2. AN ASSESSMENT WAS MADE U/S. 143(3) VIDE AN ORDER DATED 29.11.2011, WHEREIN THE ISSUE WAS IN RESPECT OF A B ANK ACCOUNT WHICH WAS CAME TO THE NOTICE OF THE AO WHEREIN THER E WERE CASH DEPOSITS OF RS.15,06,700/-. IN THE ABSENCE OF SATIS FACTORY ITA NO.2261/AHD/2012 SHRI MAHENDRA D. YADAV VS. ITO WARD 14(2), AHMEDABA D A.Y. 2009- 10 - 2 - EXPLANATION THAT AMOUNT WAS TAXED IN THE HANDS OF T HE ASSESSEE. FACTS OF THE CASE HAVE REVEALED THAT THE APPELLANT IS A SCHOOL TEACHER RECEIVING SALARY FROM RAGHUNATH HINDI HIGHE R SECONDARY VIDHYALAYS, AHMEDABAD THAT ASSESSMENT ORDER WAS CHA LLENGED BEFORE LEARNED CIT(A), HOWEVER, IT WAS NOTED BY LEA RNED CIT(A) THAT THE APPEAL WAS BELATEDLY FILED AND THAT NO ONE HAD ATTENDED THE PROCEEDINGS. THEREFORE, LEARNED CIT(A) HAD PROCEEDE D EX-PARTE AND AFFIRMED THE ADDITION. 3. NOW BEFORE US, LEARNED AR HAS PLACED AN ORDER OF LEARNED CIT(A)-XXI, AHMEDABAD FOR A.Y. 2009-10, DATED 18.09 .2013 WHEREIN A PENALTY LEVIED U/S. 271(1)(B) FOR NON APP EARANCE WAS DELETED. LEARNED AR HAS, THEREFORE, PLEADED THAT TH E ASSESSEE HAD EXPLAINED THE REASONS FOR NON ATTENDING THE NOTICES AND THAT REASON WAS ACCEPTED BY LEARNED CIT(A); HENCE, THE SAID PEN ALTY WAS CANCELLED SO HE HAS PLEADED THAT ONCE AN AUTHORITY HAS FOUND THE REASON OF NON APPEARANCE AS REASONABLE, THEREFORE, THE EX-PARTE ORDER OF LEARNED CIT(A) DESERVES TO BE QUASHED AND THE ASSESSEE MAY BE GRANTED AN OPPORTUNITY OF HEARING. LEARNED A R HAS ALSO PLEADED THAT LATE FILING OF APPEAL BEFORE LEARNED C IT(A) AS WELL AS NON APPEARANCE WAS ON ACCOUNT OF A MISTAKE OF THE C OUNSEL AND FOR THAT THE ASSESSEE MUST NOT BE PENALIZED. FOR THIS A RGUMENT, HE HAS PLACED RELIANCE UPON AN ORDER OF ITAT A BENCH AHM EDABAD PRONOUNCED IN THE CASE OF M/S. PRESIDENT INDUSTRIES (ITA NO.1638, 1639/AHD/1993 AND 1907/AHD/1994) ORDER DATED, 20 TH OF JULY, 1995, WHEREIN A DECISION OF HONBLE MADHYA PRADESH HIGH COURT ITA NO.2261/AHD/2012 SHRI MAHENDRA D. YADAV VS. ITO WARD 14(2), AHMEDABA D A.Y. 2009- 10 - 3 - WAS CITED AS MAHAVIR PRASAD JAIN, 172 ITR 331 AND D HIRUBHAI R. DESAI, 11 TTJ 366. 4. FROM THE SIDE OF THE REVENUE, LEARNED DR HAS PLE ADED THAT SEVERAL NOTICES WERE ISSUED BY LEARNED CIT(A), HOWE VER, NO ONE HAD ATTENDED, THEREFORE, THIS APPELLANT DESERVES NO SYMPATHY. HE HAS PLEADED THAT THE ASSESSEE WAS REPRESENTED BY AN APPOINTED REPRESENTATIVE; THEREFORE, THE ASSESSEE SHOULD NOT TRANSFER HIS RESPONSIBILITY ON THE COUNSEL. THE MISTAKE OF THE C OUNSEL SHOULD BE TREATED AS THE MISTAKE OF THE ASSESSEE. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE, W E ARE OF THE CONSIDERED OPINION THAT THE MATTER DESERVES TO BE R EMANDED BACK TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED DE NOV O AS PER LAW. THE ASSESSEE BEING A SCHOOL TEACHER MIGHT NOT BE IN A POSITION TO PERSONALLY ATTEND THE APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A); HENCE, DESERVES AN ANOTHER OPPORTUNITY SO THAT THE MATTER CAN NOW BE REPRESENTED PROPERLY. MOREOVER, THE LEARNED AR, MR. P.F. JAIN HAS GIVEN AN UNDERTAKING IN THE OPEN COURT TO REPRE SENT THIS APPEAL PROPERLY BEFORE LEARNED CIT(A) WITHOUT FAIL. IN THE LIGHT OF HIS UNDERTAKING GIVEN BEFORE US WE HEREBY DIRECT THAT T HE ASSESSEE EITHER HIMSELF OR THROUGH HIS REPRESENTATIVE SHOULD BE PRESENT BEFORE LEARNED CIT(A) WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF TRIBUNAL ALONG WITH ALL REQUISITE EVIDENCES WITHOUT WAITING FOR ANY FORMAL NOTICE OF HEARING FROM THE OFFICE OF THE FIR ST APPELLATE AUTHORITY. IN ANY CASE, LEARNED CIT(A) IS OTHERWISE FULLY ITA NO.2261/AHD/2012 SHRI MAHENDRA D. YADAV VS. ITO WARD 14(2), AHMEDABA D A.Y. 2009- 10 - 4 - COMPETENT AND AUTHORIZED TO PROCEED AS PER LAW TO G ET THIS APPEAL FINALIZED AS DEEMED FIT. WITH THESE DIRECTIONS, THE GROUND RAISED BEFORE US ARE HEREBY RESTORED BACK FOR DE NOVO CONS IDERATION; HENCE, MAY BE TREATED AS ALLOWED BUT FOR STATISTICA L PURPOSE ONLY. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSE ONLY. SD/- SD/- (ANIL CHATURVEDI) (MUK UL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 10/01/2014 PRABHAT KR. KESARWANI, SR. P.S . TRUE COPY TRUE COPY TRUE COPY TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD