Shri Murlidhar S.Panjabi, Bhavnagar V. The Dy.CIT.,Circle-1, Bhavnagar

ITA 2270/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6891 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER ITA NO . 2270 /AHD/20 1 1 A. Y. 200 8 - 0 9 SHRI MURLIDHAR S. PANAJABI, B - 46, MARKETING YARD, CHITRA, BHAVNAGAR . PAN: ADDPP 9508N VS THE DCIT, CIRCLE - 1, BHAVNAGAR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI M.K. SINGH , SR. D.R. , ASSESSEE(S) BY : SHRI TUSHAR HEMANI , A.R. / DATE OF HEARING : 1 8 / 1 1 /201 4 / DATE OF PRONOUNCEMENT: 23 / 1 2 /201 4 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN A PPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF T HE L EARNED CIT(A) - XX , AHMEDABAD , DAT ED 18 . 07 .201 1 AND THE MAIN GROUND S RAISED BEFORE US ARE REPRODUCED BELOW : 1. LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN PASSING EX - PARTE ORDER WITHOUT GIVING APPROPRIATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT ADJUDICATING THE MATTER ON THE MERITS AND ON THE GROUNDS OF APPEAL RAISED BY THE APPELLANT. 3. LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT ADJUDI CATING THE GROUND OF APPEAL THAT THE ID. AO HAS ERRED IN LAW IN DISALLOWING COMMISSION EXPENDITURE OF RS.10,35,455/ - . 4. LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT ADJUDICATING THE GROUND OF APPEAL THAT THE ID. AO HAS ERRED IN LAW IN DISALLOWING FRIGHT EXPENDITURE OF RS.10,13,038/ - U / S . 40(A )( IA ) O F THE ACT. 5. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS OF THE CASE IN NOT APPRECIATING THE FACTS THAT THE APPELLANT IN ANY CASE IS NOT LIABLE TO DEDUCT ITA NO. 929 /AHD/201 1 THE ACIT(OSD) - 1, RANGE - 4, AHMEDABAD VS. LABH CONSTRUCTION & INDS. LTD. FOR A.Y. 200 3 - 0 4 - 2 - TAX AT SOURCE ON SUCH PAYMENT AND THEREFORE NO ADDITION IS REQUIRED TO BE MADE U/S 40(A)(IA) OF THE ACT. 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT LEARNED CIT(A) DECIDED EX - PARTE AND DISMISS THE APPEAL IN LIMINE DUE TO NON APPEARANCE AS WELL AS DUE TO DEFECT IN THE APPEAL MEMO. 3. IN THIS REGARD, LEARNED AR, MR. TUSHAR HEMANI, HAS INFORMED THAT THE ASSESSEE HAS MOVED A PETITION BEFORE LEARNED CIT(A) AFTER THE PRONOUNCEMENT OF THE SAID JUDGMENT ; NARRATING THE FACTS AS UNDER: 2. YOUR HONOUR IN THE ORDER HAS MENTIONED TH AT THE NOTICE OF HEARING WAS ISSUED FOUR TIMES BUT NO ONE APPEARED OR SOUGHT ADJOURNMENT AND THEREFORE THE APPEAL WAS DECIDED ON EX - PARTE. IN THIS CONNECTION, I WOULD LIKE TO STATE THAT THE MATTER OF THE ASSESSEE WAS ENTRUSTED TO THE ADVOCATE SHRI. TUSHAR P. HEMANI AND HE HIMSELF HAS APPEARED BEFORE YOUR HONOURS ON 02/05/2011 AND 06/06/2011. ON THE FIRST DATE OF HEARING I.E. 02/05/2011, IT WAS MUTUALLY DECIDED BETWEEN HIM AND YOUR HONOUR THAT AS THERE ARE SEVERAL MATTERS IN WHICH HE IS APPEARING, ALL SUCH MATTERS WILL BE GROUPED IN ONE BUNCH AND ALL THE MATTERS INCLUDING THE PRESENT ONE WILL BE HEARD PERIODICALLY ONCE THE WRITTEN SUBMISSION AND PAPER - BOOK ARE READY FOR HEARING. AT THE SAME TIME IT WAS ALSO CONVEYED TO YOUR HONOUR THAT NEXT TIME WHEN THE APPEAL WOULD BE TAKEN UP FOR EFFECTIVE HEARING, VAKALATNAMA AND REVISED / CONCISE GROUNDS OF APPEAL WOULD ALSO BE FILED ALONG WITH THE WRITTEN SUBMISSION AND PAPER - BOOK. 3. THEREFORE, OUR ADVOCATE WAS CARRYING THE IMPRESSION THAT ONCE THE WRITTEN SUBM ISSION AND PAPER - BOOK IN THE PRESENT MATTER ARE READY, HE WOULD APPEAR BEFORE YOUR HONOURS AND THE HEARING WOULD TAKE PLACE THEREAFTER ONLY. . 6. IN THIS CONNECTION, IT IS STATED THAT THERE IS A MISTAKE APPARENT FROM RECORD. SO FAR AS OBSERVATION (A) I S CONCERNED, IT IS STATED THAT OUR ADVOCATE SHRI TUSHAR P. HEMANI HAS APPEARED ON 02/05/2011 AND 06/06/2011 AND AS DISCUSSED ABOVE, IT WAS MUTUALLY DECIDED THAT THE PRESENT MATTER WILL BE GROUPED IN THE BUNCH OF MATTERS IN WHICH OUR ADVOCATE APPEARS AND AL L THE MATTERS INCLUDING THE PRESENT ONE WILL BE HEARD PERIODICALLY ONCE THE SUBMISSION AND PAPER - BOOK ARE READY FOR HEARING. THEREFORE, THIS OBSERVATION IS CERTAINLY APPARENT MISTAKE WHICH IS REQUIRED TO BE RECTIFIED. 7. NOW SO FAR AS THE SECOND OBSERVATIO N (B) IS CONCERNED, IT IS MOST RESPECTFULLY STATED THAT THE FORM NO.35 IS DULY SIGNED BY ME AS WELL AS FORM OF VERIFICATION IS ALSO SIGNED BY ME AND IN THE FORM NO.35 IT IS CATEGORICALLY MENTIONED THAT STATEMENT OF FACTS AND GROUNDS OF APPEAL ARE ENCLOSED WITH FORM NO.35 AND THEREFORE IT IS STATED THAT SEPARATELY SOF AND GOA ARE NOT REQUIRED TO BE SIGNED BY ME. THEREFORE, THIS OBSERVATION IS ALSO APPARENT MISTAKE FROM RECORD WHICH IS REQUIRED TO BE RECTIFIED. ITA NO. 929 /AHD/201 1 THE ACIT(OSD) - 1, RANGE - 4, AHMEDABAD VS. LABH CONSTRUCTION & INDS. LTD. FOR A.Y. 200 3 - 0 4 - 3 - 4. HAVING HEARD THE SUBMISSION OF BOTH THE SIDE S AS ALSO CONSIDERING THE VIEW TAKEN BY THE RESPECTED ITAT AHMEDABAD BENCH IN THE CASE OF GUJARAT THEMIS BOYCE LIMITED, 34 ITD 339 (AHD) , WE DEEM IT PROPER TO RESTORE THE ISSUE AS RAISED IN THE GROUNDS OF APPEAL BACK TO THE STAGE OF LEARNED CIT(A) TO BE DE CIDED DE NOVO AFRESH AS PER LAW, NEEDLESS TO MENTION, AFTER PROVIDING A RE ASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. ON THE OTHER HAND, WE HEREBY DIRECT THE ASSESSEE AND HIS LEARNED AR TO APPEAR WITHIN 20 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL SUO MOTU BEFORE LEARNED CIT(A) WITHOUT WAITING FOR ANY FORMAL NOTICE OF HEARING TO GET THIS APPEAL DECIDED AT AN EARLY DATE. THE ASSESSEE IS FURTHER DIRECTED TO FULLY CO - OPERATE WITH THE APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A). SINCE, T HE MATTER HAS BEEN RESTORED BACK FOR DE NOVO CONSIDERATION BY LEARNED CIT(A); THEREFORE, THE GROUNDS MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. 6. IN THE RESULT, ASSESSEE S APPEAL IS ALLOWED BUT FOR STATISTICAL PURPOSE ONLY. SD/ - SD/ - ( ANIL CHAT URVEDI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23 / 1 2 / 20 1 4 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD ITA NO. 929 /AHD/201 1 THE ACIT(OSD) - 1, RANGE - 4, AHMEDABAD VS. LABH CONSTRUCTION & INDS. LTD. FOR A.Y. 200 3 - 0 4 - 4 - 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD