Shri Hemant Manubhai Patel, Vadodara V. The DCIT, Internatioal Taxation, Baroda

ITA 2371/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7176 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Valuation report
• Section: 147; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL , D BENCH, AHMEDABAD BEFORE , SHR I A.D. JAIN , VICE PRESIDENT AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ./ ITA NOS.2371 & 2372/AHD/2018 / ASSTT. YEAR S : ( 2009 - 2010 & 2012 - 13 ) HEMANTKUMAR M PATEL, 3, RAJ NAGAR SOCIEITY , O.P. ROAD, VADODARA - 390020 . PAN: BMWPP4775N VS . DCIT (INT. TAXN) , INTERNATIONAL TAXATION , VADODARA. (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : MS . URVASHI SHODHAN , A.R REVENUE BY : SMT. SMITI SAMANT , SR . DR / DATE OF HEARING : 08 / 04 / 201 9 / DATE OF PRONOUNCEMENT: 08 /04 /2 01 9 / O R D E R PER BENCH THE CAPTIONED APPEAL S HAVE BEEN FILED AT THE INSTANCE OF THE AS SESSEE AGAINST THE ORDER S OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 13 , AHMEDABAD [ LD. CIT (A) IN SHORT] , DATED 2 8 / 12 / 2016 AND 23/10/2018 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 144 R.W.S 147 OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 10 / 1 1 / 201 6 AND 27/12/2017 RELEVANT TO ASSESSMENT YEAR S (AY S ) 2009 - 10 AND 2012 - 13 RESPECTIVELY . ITA NO S.2371 - 2372/AHD/2018 ASSTT. YEAR S 2009 - 10 & 2012 - 13 2 2. FIRS T , WE TAKE ITA BEARING NO. 2372/AHD/2018 FOR A.Y. 2012 - 13 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEANED CIT(APPEALS) ERRED IN HOLDING THAT IN THE ORDER PASSED ON 23.10.2018 BY STATING THAT NOBODY ATTENDING THE HEARING. IN THIS REGARD I HAVE TO SUBMIT THAT NO NOTICE OF HEARING WAS RECEIVED BY ME OF THE FOLLOWING DATES NAMELY: I) 09 .08.2018 II) 14 .08 .2018 THE ADDRESS ON WHICH THE NOTICES HAVE BEEN SENT BY THE LEARNED CIT(A) - 13, AHMEDABAD IS PRESUMABLY INCORRECT AND THE APPEAL WAS FILED WITH THE ADDRESS AS UNDER: 3, RAJ NAGAR SOCIETY, BEH: GEB COLONY O.P. ROAD, VADODARA - 390 020. 2. THE LEARNED CIT(APPEALS) ERRED IN DISMISSING THE APPEAL ON ACCOUNT OF NON ATTENDANCE DESPITE THE FACT THAT THE NOTICES SENT BY HIM ON VARIOUS DATES STATED THAT THE APPELLANT ORDER HAS NOT BEEN RECEIVED BY THE APPELLANT. 2. THE NOTICES HAVE BEEN PRESUMABLY SENT TO AN ADDRESS WHERE T HE APPELLANT DOES NOT RESIDE AND HENCE THE NON ATTENDANCE WAS COMMITTED IN RESPECT OF THE SAID NOTICES. 3. THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUND NO.6 OF THE GROUND OF APPEAL WHEREIN IT WAS CATEGORICALLY STATED THAT THE LEARNED ASSESSING OFFICER DID NOT HAVE ANY AUTHORITY TO SUBSTITUTE THE VALUE OF THE PROPERTY WITHOUT REFERRING TO THE VALUATIO N OFFICER AND THE VALUATION REPORT WAS ALREADY FILED DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. 4. YOUR APPELLANT CRAVES THE RIGHT TO ADD TO OR ALTER, AMEND, SUBSTITUTE, DELETE OR MOD I FY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL 3 . T HE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED BEFORE US THAT THE LEARNED CIT (A) HAS PASSED THE EX PARTE ORDER WITHOUT PROVIDING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS PER THE LEARNED AR , THE LEARNED CIT (A) HAS NOT SERVED THE NOT ICE FOR HEARING AT THE CORRECT OF THE ASSESSEE . AS PER THE LEARNED AR THE CORRECT ADDRESS OF THE ASSESSEE IS AS UNDER: ITA NO S.2371 - 2372/AHD/2018 ASSTT. YEAR S 2009 - 10 & 2012 - 13 3 3, RAJ NAGAR SOCIETY, BEH: GEB COLONY, O.P. ROAD, VADODARA - 390020 I N VIEW OF THE ABOVE, THE LEARNED AR REQUESTED US TO RESTOR E THE MATTER TO THE FILE OF LEARNED CIT (A) FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. 4 . ON THE CONTRARY, THE LEARNED DR SUBMITTED THAT THE ASSESSEE WAS AFFORDED SUFFICIENT OPPORTUNITIES FOR HEARING BY THE LEARNED CIT (A) AND THEREFORE HE OPPO SED TO THE RE STORE THE MATTER TO THE FILE OF LEARNED CIT (A). 5 . HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSAL OF APPEAL FORM 35 BEFORE THE LD. CIT - A , WE FIND THAT THE ASSESSEE H AS MENTIONED THE ADDRESS FOR THE SERVICE OF THE NOTICE AS DETAILED BELOW: LAL DARWAJAAT BHAILI, VADODARA, GUJARAT PINCODE: 390015 5 .1 W E FURTHER FIND THAT THE ORDER PASSED BY THE LEARNED CIT (A) WAS CONTAINING THE SAME ADDRESS AS MENTIONED ABOVE. THEREFORE WE ARE NOT CONVINCED WITH THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE NOTICES FIXING THE CASE FOR HEARING WERE ISSUE D BY THE LEARNED CIT (A) AT THE WRONG ADDRESS. 5 .2 HOWEVER, ON FURTHER PERUSAL OF THE STATEMENT OF FACTS FILED ALONG WITH FORM 35 BEFORE THE LEARNED CIT (A) BY THE ASSESSEE, IT WAS REVEALED THAT THE ASSESSEE HA D MENTIONED HIS ADDRESS AT 3, RAJ NAGAR SOC IETY, BEH: GEB COLONY, O.P. ROAD, VADODARA - 390020 WHICH IS ALSO AVAILABLE IN PAN DATABASE AND IT RECORDS. THEREFORE, WE ARE OF THE VIEW THAT THE LEARNED CIT ITA NO S.2371 - 2372/AHD/2018 ASSTT. YEAR S 2009 - 10 & 2012 - 13 4 (A) BEFORE ADJUDICATING THE APPEAL EX PARTE SHOULD HAVE ALSO ISSUED NOTICE FOR HEARING AT THE SAID ADDRESS. 5 .3 IT IS AN UNDISPUTED FACT THAT THE ASSESSEE COULD NOT RAISE HIS POINTS OF CONTENTIONS BEFORE THE LEARNED CIT (A) AS REQUIRED UNDER THE PROVISIONS OF SECTION 250(2) OF THE ACT. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY OF BEING HEARD. HENCE WE ARE INCLINED TO RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT (A) FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW AFTER AFFORDING THE REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 5 .4 THE GRANTING OF AN OPPORTUNITY OF HEARING ALIGNS WITH THE AGE - OLD PRINCIPLE THAT THE JUSTICE IS NOT ONLY TO BE DONE BUT MANIFESTLY SEEN TO BE DONE . 5 .5 IT IS NEEDLESS TO MENTION THAT, THE ASSESSEE SHOULD COOPERATE AND ATTEND THE HEARING TIME TO TIME AS TO BE FIXED BY THE LEARNED CIT (A). IN VIEW OF THE ABOVE, WE ARE SETTING ASIDE THE ISSUE TO THE FILE OF LEARNED CIT (A) FOR FRESH ADJUDICATION. HENCE THE G ROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES 7 . NOW C OMING TO THE ITA BEARING NO. 2371/AHD/2018 FOR A.Y.2009 - 10 . 8 . THE FACTS OF THE CASE ARE IDENTICAL TO THE FACTS OF THE CASE AS DISCUSSED ABOVE IN ITA 2372/AHD / 2017, WHICH WE HAVE AD JUDICATED BY RESTORING THE ISSUE TO THE FILE OF THE LEARNED C IT - A. THEREFORE RESPECTFULLY FOLLOWING THE ITA NO S.2371 - 2372/AHD/2018 ASSTT. YEAR S 2009 - 10 & 2012 - 13 5 SAME, WE RESTORE THE IMPUGNED ISS UE TO THE FILE OF THE LEARNED CIT (A) FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 9 . IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES 10 . IN THE COMBINED RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES O RDER PRONOUNCED IN THE COURT ON 08 /04 / 2019 AT AHMEDABAD. - SD - - SD - (A.D. JAIN ) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 08 / 04 /2019 M ANISH