Himanshu Bharatbhai Jani, Ahmedabad V. The ITO, Ward-6(1)(4), Ahmedabad

ITA 2353/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4245 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: S N DIVATIA
• Keywords: Principle of natural justice; Set aside
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.2353/AHD/2018 (ASSESSMENT YEAR : 2013-14) HIMANSHU BHARATBHAI JANI, 108/2755, GUJARAT HOUSING BOARD, B/H RAMESHWAR POLICE CHOWKI, MEGHANINAGAR, AHMEDABAD. VS. INCOME TAX OFFICER, WARD 6(1)(4), ASHRAM ROAD, AHMEDABAD. [PAN NO. AIYPJ 0313 M] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S. N. DIVATIA & MEHUL TALERA, A.R. RESPONDENT BY : SHRI G. C. DAXINI, SR. D.R. DATE OF HEARING 07/05/2019 DATE OF PRONOUNCEMENT 10/05/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 10.10.2018 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-6, AHMEDABAD UNDER SECTION 143(3) OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT) ARISING OUT OF THE ORDER DATED 23.03.2016 PAS SED BY THE ITO, WARD. 6(1)(4), AHMEDABAD FOR THE ASSESSMENT YEAR 2013-14. 2. THE ASSESSEE BEING AN INDIVIDUAL FURNISHED HIS R ETURN OF INCOME THROUGH ELECTRONIC MEDIA ON 17.09.2014 FOR A.Y. 2013-14 BEI NG TAXABLE INCOME AT RS. NIL ALONG WITH THE STATEMENT OF INCOME, TRADING AND P&L ACCOUNT AND BALANCE SHEET. HIS MAIN SOURCE OF INCOME WAS FROM BUSINESS AND SHORT TERM CAPITAL ITA NO.2353/AHD/2018 HIMANSHU BHARATBHAI JANI VS. ITO ASST.YEAR 2013-14 - 2 - GAIN. UNDER SCRUTINY NOTICE U/S 143(2) OF THE ACT D ATED 31.08.2015 WAS ISSUED UPON THE ASSESSEE FOLLOWED BY A FURTHER NOTICE U/S 143(2) OF THE ACT DATED 23.09.2015 AND NOTICE U/S 142(1) OF THE ACT DATED 2 6.10.2015. THE SAID ASSESSMENT WAS ULTIMATELY FINALIZED BY THE LEARNED AO UPON MAKING ADDITION OF RS. 29,89,900/- UPON DISALLOWANCE OF UNSECURED L OAN AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE ACT. IN APPEAL, THE SAME WAS CONFIRMED BY THE LEARNED CIT(A) EX-PARTE ON THE GRO UND THAT EARLIER IN THREE OCCASIONS WHEN THE MATTER WAS FIXED FOR HEARING NON E APPEARED ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT FOR . ULTIMATELY, ON 09.10.2018, THE MATTER WAS HEARD EX-PARTE AND FINAL IZED UPON CONFIRMATION OF ADDITION BY THE LEARNED AO. 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT ON 09.10.2018, THE ASSESSEE MADE A REQUEST PRAYING FOR ADJOURNMENT BY WAY OF AN APPLICATION ON THE GROUND THAT HIS ADVOCATE ENGAGED IN THE MATTER IS U NDER MEDICAL TREATMENT. SINCE HE WAS NOT FIT AND WAS UNDER TREATMENT, HE WA S UNABLE TO APPEAR BEFORE THE LEARNED CIT(A). THOUGH SUCH PRAYER OF THE ASSES SEE HAS BEEN MENTIONED IN THE ORDER IMPUGNED BY THE LEARNED CIT(A) BY REPR ODUCING THE RELEVANT PORTION OF SUCH APPLICATION AT PAGE-3 THE LEARNED C IT(A) HAS NOT GIVEN ANY CREDENCE TO THAT WITHOUT ASSIGNING ANY REASON, WHAT SOEVER. SINCE THE ASSESSEE SOUGHT FOR ADJOURNMENT ON COGENT REASON ON THAT PAR TICULAR DAY, WHICH WAS NOT TAKEN INTO CONSIDERATION BY THE LEARNED CIT(A) IN I TS PROPER PROSPECTIVE AND IN SPITE OF SUCH REQUEST THE MATTER WAS HEARD EX-PARTE AGAINST THE ASSESSEE, THE LEARNED AR PRAYED BEFORE US FOR QUASHING THE ORDER IMPUGNED ON THE GROUND THAT THE SAID ORDER IS BAD IN LAW FOR VIOLATING THE PRINCIPLE OF NATURAL JUSTICE AGAINST THE ASSESSEE. HE, THUS FURTHER PRAYED THE I SSUE TO BE SET ASIDE TO THE FILE ITA NO.2353/AHD/2018 HIMANSHU BHARATBHAI JANI VS. ITO ASST.YEAR 2013-14 - 3 - OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION OF THE MATTER. HOWEVER, THE LEARNED DR HAS NOT RAISED ANY SERIOUS OBJECTION TO SUCH CONTENTION MADE BY THE LEARNED AR. 4. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT IN ORDER TO PREVENT THE MISCAR RIAGE OF JUSTICE AN OPPORTUNITY OF HEARING BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE LEARNED CIT(A) AND WE THUS SET ASIDE THE ISSUE TO T HE FILE OF THE LEARNED CIT(A) TO ADJUDICATE THE SAME AFRESH UPON GIVING HE ARING TO THE ASSESSEE AND UPON TAKING INTO CONSIDERATION THE EVIDENCES ALREAD Y ON RECORD AND ALSO THE EVIDENCES WHICH THE ASSESSEE MAY CHOSE TO FILE AT T HE TIME OF HEARING OF THE INSTANT APPEAL. ASSESSEES APPEAL IS, THUS, ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 10 / 05 /201 9 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 10/05/2019 PRITI YADAV, SR.PS ITA NO.2353/AHD/2018 HIMANSHU BHARATBHAI JANI VS. ITO ASST.YEAR 2013-14 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-6, AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 09.05.2019 (DICTATION PAGES 3) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.05.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 10.05.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER