Latke Madhukar Sakharam, Ahmednagar V. Income-tax Officer, Ward - 1, Ahmednagar

ITA 2324/PUN/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5482 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-06-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.2324/PUN/2017 / ASSESSMENT YEAR : 2007-08 LATKE MADHUKAR SAKHARAM, SHIVAJI NAGAR, DATTA CHOWK, KARAL MALA, KEDGAON, AHMEDNAGAR-414001. PAN : AFZPL1122J . /APPELLANT VS. ITO, WARD-1, AHMEDNAGAR. . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI VISHWAS MUNDHE / DATE OF HEARING : 08.08.2019 / DATE OF PRONOUNCEMENT: 27.08.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-2, PUNE DATED 28.06.2017 FOR THE ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1) THE LD. CIT (A) HAS ERRED IN NOT PROVIDING SUFFICIENT OPPORTUNITY TO THE APPELLANT AND HURRIEDLY PASSED THE APPELLATE ORDER THEREBY NOT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 2) THE LD. CIT (A) HAS ERRED IN NOT APPRECIATING THE FACT THAT CIVIL SUIT PROCEEDINGS ARE PENDING BEFORE THE HON'BLE AHMEDNAGAR COURT IN WHICH THE VALIDITY OF THE 2006 DOCUMENT HAS BEEN CHALLENGED BY VARIOUS PARTIES AND ALSO BY THE ASSESSEE. 3) THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE LD.AO HAS PASSED THE ASSESSMENT ORDER BY RELYING ON THE STATEMENTS RECORDED OF ONLY SOME PURCHASING PARTIES AND BY NOT PROVIDING THE APPELLANT AN OPPORTUNITY TO REBUT THE CLAIMS MADE BY THESE PARTIES. 4) THE LD.CIT (A) HAS ERRED IN NOT APPRECIATING THAT THE LD. AO HAS AGAIN PASSED THE ASSESSMENT ORDER IN A HURRIED MANNER AND WITHOUT PROVIDING THE ITA NO.2324/PUN/2017 - 2 - APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD AND THAT THE LD.AO THEREBY DID NOT FOLLOW THE DIRECTIONS OF THE HON'BLE ITAT, PUNE. 5) THE LD. CIT (A) HAS ERRED IN UPHOLDING THE ASSESSMENT ORDER OF THE LD.AO ASSESSING LTCG OF RS.49,48,567/-, WITHOUT PROPERLY APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 6) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. DESPITE SERVICE OF NOTICE OF HEARING BY THE ITAT, THERE WAS NONE TO REPRESENT THE ASSESSEE BEFORE ME. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR FOR THE REVENUE. 4. AT THE OUTSET, LD. DR FOR THE REVENUE SUBMITTED THAT THIS IS A CASE WHERE THE NOTICE WAS SERVED ON THE ASSESSEE AS PER THE PROCEDURE AND THE ACKNOWLEDGEMENT FOR THE SAME IS ALSO AVAILABLE ON THE RECORD. FURTHER, I FIND FROM THE ABOVE EXTRACTED GROUNDS THAT THE ASSESSEE RAISED THE ISSUE OF VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE. FURTHER, I ALSO FIND FROM THE ORDER OF THE CIT(A) THAT THE APPEAL WAS HEARD EX-PARTE . TO VERIFY THE ALLEGATION OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, I PERUSED THE ORDER OF THE CIT(A) AND FIND THE EX-PARTE ORDER WAS PASSED BY THE CIT(A) WITHOUT ISSUING NOTICES OF HEARING TO THE ASSESSEE AS PER THE PROCEDURE LAID DOWN BY THE ACT/RULES. 5. ON PERUSING THE SAID ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE LEGAL ISSUE RAISED BY THE ASSESSEE IN THE GROUNDS PER SE , I FIND THE DAMAGE IS CAUSED TO THE PRINCIPLES OF NATURAL JUSTICE. THE CIT(A) SHOULD HAVE GRANTED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PUT HIS CASE BEFORE PASSING EX-PARTE ORDER. THERE IS NO EVIDENCE THAT THE NOTICES WERE SERVED ITA NO.2324/PUN/2017 - 3 - ON THE ASSESSEE AND THEREFORE THE ASSESSEE DID NOT APPEAR ON ALL OCCASIONS BEFORE THE CIT(A). 6. CONSIDERING THE SAME, I AM OF THE OPINION THAT THE ORDER OF THE CIT(A) SHOULD BE SET-ASIDE AND ALL THE ISSUES RAISED BY THE ASSESSEE BEFORE ME SHOULD BE REMANDED TO THE FILE OF THE CIT(A) FOR ONE MORE ROUND OF ADJUDICATION. THIS TIME, THE CIT(A) SHALL GRANT REASONABLE OPPORTUNITY TO THE ASSESSEE, RECORD THE EVENT-WISE RESPONSE FROM THE ASSESSEE AND PASS A SPEAKING ORDER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE ACT. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 27 TH DAY OF AUGUST, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 27 TH AUGUST, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-2, PUNE; 4. THE PR. CCIT, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE