Shri Amalkrishna R.Majumdar, Ahmedabad V. The Income tax Officer,Ward-12(2), Ahmedabad

ITA 2331/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0374 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 31-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH SENIOR
• Assessee Lawyers: PF JAIN
• Keywords: Opportunity of being heard; Non compliance; Set aside
• Section: 142(1); 143(2); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'SMC' (BEFORE SHRI MAHAVIR SINGH JUDICIAL MEMBER) ITA NO.2331/AHD/2009 (ASSESSMENT YEAR:- 2006-07) SHRI AMALKRISHNA R MAJUMDAR, C/O. SHYAMSUNDER MAJUMDAR, A-17, CHUNILAL PARK, NR. HIRABA PARTY PLOT, AMRAIWADI, AHMEDABAD V/S THE INCOME-TAX OFFICER, WARD-2(2), AHMEDABAD [APPELLANT] [RESPONDENT] APPELLANT BY :- SHRI P F JAIN RESPONDENT BY:- SMT. NEETA SHAH, SENIOR DR O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS)-XX, AHMEDABAD [THE CIT(A) FOR SHORT] IN APPEAL NO. CIT(A)-XX/165/08-09, DATED 09-04-2009, FOR ASSE SSMENT YEAR 2006-07. 2 AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE FAIRLY STATED THAT THE ORDERS PASSED BY THE LOWER A UTHORITIES ARE EX-PARTE, I.E., OF THE AO U/S 144 OF THE INCOME-TAX ACT, 1961 [THE ACT FOR SHORT] AND OF THE CIT(A) ALSO IN ABS ENCE OF THE ASSESSEES REPRESENTATIVE. THE LEARNED COUNSEL FOR THE ASSESSEE NARRATED THE REASONS FOR ABSENCE WHICH ARE GIVEN IN ASSESSEES 2 AFFIDAVIT FILED BEFORE US DATED 30-07-2009 AND RELE VANT REASONS IN PARAS-2 TO 10 READ AS UNDER:- 2) THAT FOR A.Y. 2006-2007 1 FILED RETURN OF INCOM E ON 25/07/2006 IN WARD 12(4), AHMEDABAD VIDE RECEIPT NO. 124130052 4 SHOWING INCOME OFRS.81,305 AND THIS RETURN WAS SELECTED FOR SCRUTINY FOR FIRST TIME AS IN THE PAST NO SUCH SCRUTINY WAS MADE. 3) THAT I AM HAVING INDIFFERENT HEALTH BEING SUFFE RING FROM HIGH BLOOD PRESSURE AND HEART AILMENT . AS A RESULT ON H EALTH GROUND I HAVE TO LEAVE AHMEDABAD ON 08/08/2007 TO JOIN MY FAMILY AT CALCUTTA , B- 14/370 KALYANI DIST. NADIA WEST BENGAL PIN. CODE NO 741235 AND SINCE THEN I AM LIVING A RETIRED LIFE. 4) THAT MY INCOME TAX RETURNS RELATED WORK IS HAND LED BY JAY ACCOUNTING SERVICES FOR LAST MANY YEARS , WHO IS BA SED AT BHARVI TOWER, NEAR NIDHI BANK, CTM ARMRAIWADI, AHMEDABAD T O WHOM NECESSARY DOCUMENTS WERE GIVEN FROM YEAR TO YEAR AN D 1 RELIED ON THEM FOR INCOME TAX GUIDANCE AND COMPLIANCE.. 5) THAT THE FOLLOWING NOTICES ISSUED BY INCOME TAX DEPARTMENT FOR A.Y. 2006-07 SENT BY POST AT MY ADDRESS WHICH WERE RECEIVED BY MY NEPHEW IN MY ABSENCE AND THE SAME WERE DULY GIVEN B Y HIM TO THE JAY ACCOUNTING SERVICES FOR MAKING NECESSARY COMPLIANCE THEREOF AND ON BEING ENQUIRED IN THIS REGARD FROM CALCUTTA I WAS E VERY TIME INFORMED BY THEM THAT NECESSARY COMPLIANCE WAS MADE AND I NE ED NOT WORRY IN THIS REGARD. A. : NOTICE DATED 04/07/2007 U/S. 143(2) B. : NOTICE DATED 19/09/2008 U/S. 142(1) AND U/S. 143(2); C. : SHOW CAUSE NOTICE DATED 02/12/2008 AND NOTIC E U/S 142(1) DATED 02-12-2008. BUT UNFORTUNATELY THESE NOTICES WERE NOT COMPLIED W ITH BY JAY ACCOUNTING SERVICES AS MENTIONED IN THE ORDER WHICH I CAME TO KNOW ONLY AFTER PASSING OF ASSESSMENT ORDER AND WHEN APP EAL PAPERS WERE SENT TO ME FOR SIGNATURE BY THEM. 3 6) THAT ON ACCOUNT OF NON COMPLIANCE OF NOTICES, AS SESSMENT ORDER FOR AX. 2006-07 WAS PASSED ON 15/12/2008 U/S.144 DETERM INING INCOME AT RS.2.46.635 AS AGAINST MY RETURN OF INCOME OF RS.81 ,305.WITH DEMAND OF RS. 36,947 .ON BEING INFORMED REGARDING THIS ORD ER AND DEMAND I WAS SHOCKED AND AS ADVISED BY THE JAY ACCOUNTING SE RVICES APPEAL WAS FILED BY THEM BY OBTAINING MY SIGNATURE ON APP EAL MEMO SENT TO ME AT CALCUTTA. 7) UNFORTUNATELY AT APPEAL HEARING ALSO NO PROPER R EPRESENTATION WAS MADE WHICH RESULTED INTO MY APPEAL BEING DISMISSED WHICH I CAME TO KNOW ON OBTAINING ORDER FROM THE OFFICE OF THE CIT APPEAL ON 28/07/2009 BY MY SELF ON ARRIVAL AT AHMEDABAD. 8) THAT THE INCOME TAX OFFICER HAS ALSO LEVIED PEN ALTY U/S.27 1(1)(C) OF RS.24,714 BY ORDER DATED 17/06/2009 AND PENALTY OF RS.40,000 BY ORDER U/S.271(1)(B) DATED 17/06/2009 9) THAT AS I HAVE LEFT AHMEDABAD ON ACCOUNT OF MY ILL HEALTH AND THAT ALL THE NOTICES FOR COMPLIANCE FOR AY 2006-07 WERE SENT TO JAY ACCOUNTING SERVICES WHO WERE HANDLING MY INCOME TAX WORK FOR LAST MANY YEARS AND WHO WERE INFORMING ME ABOUT MAKING N ECESSARY ATTENDANCE BEFORE INCOME TAX OFFICER AND CIT APPEAL AND I RELIED UPON THEM AS I WAS NOT LIVING AT AHMEDABAD. 10) THAT FROM ORDERS PASSED BY VARIOUS INCOME TAX A UTHORITIES IT IS SEEN THAT NO COMPLIANCE WAS MADE BY MY LEGAL ADVISO R RESULTING INTO RAISING OF HUGE INCOME TAX DEMAND AGAINST ME WITHOU T THERE BEING NO FAULT ON MY PART, THAT AS I HAVE SUFFERED ON ACCOUN T OF NEGLIGENCE OF MY LEGAL ADVISOR. I EARNESTLY PRAY FOR CONDONATION OF UNINTENDED DEFAULTS AND DELAY IN FILING PENALTY APPEALS AS I W AS UNDER THE BONA FIDE BELIEF THAT EVERY THING WAS LOOKED AFTER BY MY LEGAL ADVISOR TO WHOM I HAVE ASSIGNED THE WORK . 3 IN VIEW OF THIS, THE LEARNED COUNSEL FOR THE ASS ESSEE REFERRED TO THE DECISION OF THE HONBLE MADHYA PRAD ESH HIGH COURT IN THE CASE OF MAHAVEERPRASAD JAIN V CIT [1988] 172 ITR 331 (MP) , WHEREIN THE HONBLE HIGH COURT, RELYING ON THE 4 DECISION OF THE HONBLE APEX COURT IN THE CASE OF R AFIQ V MUNSHILAL, AIR 1981 SC 1400, 1401, HAS HELD AS UNDE R: HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, WE H AVE COME TO THE CONCLUSION THAT THE APPLICATION DESERVES TO BE ALLO WED. THE APPLICANT HAD ENGAGED A COUNSEL AND WAS, THEREFORE, JUSTIFIED IN PRESUMING THAT COUNSEL WOULD ATTEND TO THE CASE. THE APPLICANT CAN NOT BE MADE TO SUFFER FOR THE NEGLIGENCE OF COUNSEL. WE MAY USEFUL LY REFER TO THE FOLLOWING OBSERVATIONS OF THE SUPREME COURT IN RAFI Q V MUNSHILAL, AIR 1981 SC 1400, 1401: THE HONBLE MADHYA PRADESH HIGH COURT HAS ALSO REPR ODUCED THE OBSERVATIONS OF THE HON'BLE SUPREME COURT AND THE R ELEVANT OBSERVATIONS FROM THAT ORDER READ AS UNDER: THE PROBLEM THAT AGITATES US IS WHETHER IT IS PROP ER THAT THE PARTY SHOULD SUFFER FOR THE INACTION, DELIBERATE OMISSION OR MISDEMEANOUR OF HIS AGENT. THE ANSWER OBVIOUSLY IS IN THE NEGATIVE. MAY BE THAT THE LEARNED ADVOCATE ABSENTED HIMSELF DELIBERATELY OR I NTENTIONALLY. WE HAVE NO MATERIAL FOR ASCERTAINING THAT ASPECT OF TH E MATTER. WE SAY NOTHING MORE ON THAT ASPECT OF THE MATTER. HOWEVER, WE CAN NOT BE A PARTY TO AN INNOCENT PARTY SUFFERING INJUSTICE MERE LY BECAUSE HIS CHOSEN ADVOCATE DEFAULTED. THEREFORE, WE ALLOW THIS APPEAL, SET ASIDE THE ORDER OF THE HIGH COURT, BOTH DISMISSING THE AP PEAL AND REFUSING TO RECALL THAT ORDER. WE DIRECT THAT THE APPEAL BE RESTORED TO ITS ORIGINAL NUMBER IN THE HIGH COURT AND BE DISPOSED O F ACCORDING TO LAW. 4 ON THE OTHER HAND, THE LEARNED DR OBJECTED TO TH E ARGUMENTS OF THE ASSESSEES COUNSEL AND STATED THAT THIS ISSUE SHOULD NOT BE SET ASIDE TO THE FILE OF THE AO AS NU MEROUS OPPORTUNITIES HAVE BEEN PROVIDED TO THE ASSESSEE AN D THIS HAS BEEN ADMITTED BY THE ASSESSEE EVEN BEFORE THE CIT(A ). 5 IN VIEW OF THE ABOVE ARGUMENTS AND THE CASE LAW OF HONBLE MADHYA PRADESH HIGH COURT, AND TAKING A VIE W WHICH IS 5 IN CONSONANCE WITH THE PRINCIPLES OF NATURAL JUSTIC E, I SET-ASIDE THIS ISSUE IN ENTIRETY TO THE FILE OF THE AO TO DEC IDE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH TH E AO IN FINALIZING THE ASSESSMENT BY PRODUCING NECESSARY EV IDENCE IN SUPPORT OF HIS CLAIM IN REGARD TO THE CLAIM OF VARI OUS EXPENSES AMOUNTING TO RS.1,65,230/-. ACCORDINGLY, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT TODAY ON 09-10-2 009 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATE : 09-10-2009 COPY OF THE ORDER FORWARDED TO : 1. SHRI AMALKRISHNA R MAJUMDAR, C/O. SHYAMSUNDER MAJUMDAR, A-17, CHUNILAL PARK, NR. HIRABA PARTY PLOT, AMRAIWADI, AHMEDABAD 2. THE ITO, WARD-2(2), AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XX, AHMEDABAD 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABA