M/s. Mayur Construction, Valsad V. The ACIT., Cent.Circle-4, Surat

ITA 2359/AHD/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0477 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 19-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: S C CHHEDA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NOS. 2358 & 2359/AHD/2010 / ASSESSMENT YEAR : 2002-03 & 2004-05 MAYUR CONSTRUCTION, 101, AMAR CHAMBERS, VALSAD PAN : AADFM 9859 L VS ACIT, CENTRAL CIRCLE-4, SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.C.CHHEDA, AR REVENUE BY : SMT. SONIA KUMAR, SR DR / DATE OF HEARING : 05/10/2016 / DATE OF PRONOUNCEMENT: 06/10/2016 / O R D E R THESE ARE TWO ASSESSEES APPEALS CHALLENGING EX PARTE ORDER OF LD. CIT(A)-II, AHMEDABAD DATED 14.08.2007 CONFIRMING PE NALTY OF RS.3,82,660/- FOR AY 2002-03 AND RS.2,05,564/- FOR AY 2004-05. 2. THE APPEALS IN QUESTION ARE DELAYED FOR WHICH CO NDONATION APPLICATION IS FILED ALONG WITH AFFIDAVIT OF THE AS SESSEE DEPOSING AS UNDER:- .. 3. ALL PARTNERS OF M/S. MAYUR CONSTRUCTION ARE PER MANENTLY STAYING AT BOMBAY SINCE THE INCEPTION OF THE FIRM. 4. THE FIRM WAS EARLIER REPRESENTED BY MR. BHARAT MALDE THROUGH POWER OF ATTORNEY GRANTED IN HIS FAVOUR. ALL MATTERS RELATED TO FIRM M/S MAYUR CONSTRUCTION WAS LOOKED AFTER BY MR. BHARAT P MALDE . IN VIEW OF THE DIFFERENCES WITH MR. BHARAT MALDE, THE POWER OF ATT ORNEY WAS REVOKED IN THE FINANCIAL YEAR 2005-06. DURING THE PERIOD OF HEARIN G BEFORE CIT(A), THE OFFICE OF M/S. MAYUR CONSTRUCTION WAS NOT REMAINING OPEN F OR ALL DAYS AND ALL TIME IN VIEW OF NON AVAILABILITY OF RESPONSIBLE PER SON AND STOPPING THE ACTIVITY OF MAKING NEW PROJECT. IN VIEW OF ABOVE, I T SEEMS THAT ORDER OF CIT(A) HAS NOT BEEN SERVED TO THE FIRM FOR ABOVE BO TH YEARS. 5. DURING THE PERIOD OF HEARING OF APPEAL BEFORE C IT (A), MR. D. D. DESAI DID NOT ATTENDED BEFORE CIT(A), WHICH WAS NOT TO OU R NOTICE. THE ABOVE FACT HAS JUST COME TO OUR KNOWLEDGE AFTER GETTING COPY O F CIT (A) ORDER EVEN IN THE ORDER OF CIT (A), IT HAS BEEN MENTIONED THAT TH E NOTICE OF HEARING WAS RETURNED BACK. SMC-ITA NOS. 2358 & 2359/AHD/2010 MAYUR CONSTRUCTION VS. ACIT AY : 2002-03 & 2004-05 2 6. DURING THE PROCEEDING BEFORE A.O. FOR GIVING EF FECT TO TRIBUNAL ORDER FOR A.Y.2000-01 RELATING TO ASSESSMENT U/S 143(3), IT W AS BROUGHT TO OUR NOTICE BY OUR CHARTERED ACCOUNTANT MR. S. D. CHHEDA THAT O RDER OF CIT(A) ARE NOT AVAILABLE FOR PENALTY U/S271(1)(C) ON RECORD WITH M /S MAYUR CONSTRUCTION OR FROM RECORD OF C.A. OF MR. D. D. DESAI. 6. WE IMMEDIATELY APPLIED FOR COPY OF CIT(A) ORDER BEFORE OUR A.O IN FEBRUARY -2010. THE MATTER WAS AGAIN REMINDED ON 9/ 6/10 TO THE A.O. DURING INTERVENING PERIOD, IT WAS ORALLY TOLD BY A. O. TO OUR C.A. THAT AS RECORDS ARE TRANSFERRED FROM CENTRAL CIRCLE SURAT T O VALSAD, THE ORDERS OF CIT(A) SEEM TO HAVE BEEN SENT TO ACIT, CENTRAL CIRC LE 4, SURAT. 3. IT IS FURTHER CONTENDED THAT THEREAFTER THE ASSE SSEE APPLIED FOR CERTIFIED COPY OF THE ORDER OF LD. CIT(A) AND PROMPTLY FILED THESE APPEALS. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, CONSIDERED THAT THERE WAS LAXITY ON THE PART OF THE ASSESSEE IN NOT INFORMING THE CHANGE OF ADDRESS TO THE DEPARTMENT. HOWEVER, THE FACT REMAINS THAT DUE TO NON-COOPERATION OF SHRI D.D. DESAI, THE APPEAL COULD NOT BE REPRESENTED. THE ASSESSEE IS WILLING TO BEAR A SUITABLE COST IN THIS BEHALF AND THE LD. COU NSEL UNDERTOOK TO ATTEND THE PROCEEDINGS BEFORE THE LD. CIT(A) IF ONE MORE C HANCE OF HEARING OF THE APPEAL BEFORE THE LD. CIT(A) WAS ACCORDED. 4. THE LD. DR , ON THE OTHER HAND, RELIED ON THE OR DER OF THE CIT(A). 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. FROM THE AFFIDAVIT FILED BY THE ASSESSEE, IT EMERGES THAT AL L THE PARTNERS ARE RESIDENT OF BOMBAY. DURING THE PERIOD OF APPEAL BEFORE THE LD. CIT(A), THE PROJECT OFFICE OF THE ASSESSEE WAS CLOSED. THEREFORE, TH E NOTICES COULD NOT BE SERVED ON THE ASSESSEE. AFTER COMING TO KNOW ABOUT THE CIT(A)S ORDERS, THE ASSESSEE APPLIED FOR CERTIFIED COPIES AND PROMP TLY FILED THE APPEAL BEFORE THE ITAT. THEREFORE, IN MY CONSIDERED VIEW, THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN DELAY OF FILING OF APPEAL BEFORE THE ITAT. THE DELAY IS CONDONED IN VIEW OF THE HONBLE SUPREM E COURT JUDGMENT IN SMC-ITA NOS. 2358 & 2359/AHD/2010 MAYUR CONSTRUCTION VS. ACIT AY : 2002-03 & 2004-05 3 THE CASE OF COLLECTOR LAND ACQUISITION VS MST. KATI JI & ORS, REPORTED IN 987 SCR (2) 387. CONSEQUENTLY, THE ISSUE IN QUESTION I S SET ASIDE AND RESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME A FRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD ON FOLLOWING CONDITIONS:- (I) THE ASSESSEE SHALL PAY A COST OF RS.5000/- (RS. FIV E THOUSAND ONLY) FOR EACH ASSESSMENT YEAR; I.E., TOTAL RS.10,0 00/-. (II) THE PROOF OF PAYMENT OF COST OF RS.10,000/- ALONG W ITH COPY OF THIS ORDER OF ITAT SHOULD BE FILED BEFORE THE LD. CIT(A) WITH A REQUEST TO FIX THE DATE OF HEARING. (III) THE ASSESSEES COUNSEL SHALL ABIDE BY HIS UNDERTAKI NG TO PURSUE THE APPEAL IN EFFECTIVE MANNER. 6. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 6 TH OCTOBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 06/10/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD