The Dy.Director of Income tax(Exemption), Ahmedabad V. Lions Dist.323-B, Foundation, Ahmedabad

ITA 2425/AHD/2010

• Counselvise Citation: 242520514 RSA 2010
• Duration Of Justice: 2 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-12-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 29-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR SRDR
• Assessee Lawyers: R B RATHI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH BEFORE SHRI G.C.GUPTA, VICE-PRESIDENT (AZ) AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.2425-2426/AHD/2010 ASSESSMENT YEARS:2001-02 & 2002-03 DY. DIRECTOR OF INCOME-TAX (EXEMPTION), 2 ND FLOOR, NATURE VIEW BUILDING, OPP. H.K. HOUSE, ASHRAM ROAD, AHMEDABAD-38009 / V/S . LIONS DIST. 323-B, FOUNDATION, LOIN CENTRE, MITHAKHALI, ELLESBRIDGE, AHMEDABAD -38006 [ PAN NO.AAPLO 0717 H ] / APPELLANT .. / RESPONDENT /ASSESSEE BY SHRI R.B. RATHI, AR /REVENUE BY SHRI RAHUL KUMAR, SR-DR / DATE OF HEARING 20-12-2012 !'# / DATE OF PRONOUNCEMENT 31-12-2012 $ $ $ $ / // / ORDER PER A.K. GARODIA, ACCOUNTANT MEMBER:- THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECTE D COMMON ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XXI (CIT(A) FOR SHORT) DATED 13-05- 2010 FOR THE ASSESSMENT YEARS (AY) 2001-02 AND 2002 -03 RESPECTIVELY. 2. THE GROUNDS RAISED BY THE REVENUE IN BOTH THE AP PEALS ARE IDENTICAL EXCEPT DIFFERENCE IN AMOUNT, AND HENCE, WE REPRODUC E OF GROUNDS OF APPEAL FROM THE APPEAL FILED BY THE REVENUE FOR AY 2001-02 I.E. IN ITA NO. 2425/AHD/2010 . THE GROUND RAISED BY REVENUE AS UNDER:- ITA NO.2425-26/AHD/2010 A.YS.01-02 & 02-03 DY.DIT(EXEMPTION) ABD V. LIONS DIST. 323-B FOUNDATION PAGE 2 (I) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N PASSING AN ORDER U/S. 154 OF THE I.T. ACT, WHEN IN FACT THERE WAS NO MIST AKE APPARENT ON RECORD. (II) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DIRECTING TO DELETE THE DISALLOWANCE U/S. 11 OF RS.7,74,652/- OF THE I. T. ACT. 3. IT WAS SUBMITTED BY LD. DR OF THE REVENUE THAT O RIGINAL ORDER WAS PASSED BY LD. CIT(A) ON 08-04-2009 AS PER WHICH THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR BOTH THE YEARS. THEREAFTER ASSESS EE APPLIED FOR RECTIFICATION U/S. 154 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) BEFORE LD. CIT(A) AND IMPUGNED ORDER WAS PASSED BY LD. CIT(A) ON THIS APPLICATION OF THE ASSESSEE AS PER WHICH HE HAS ALL OWED THE APPEAL OF ASSESSEE IN BOTH THE YEARS WITHOUT OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER AND WITHOUT GIVING ANY FINDING AS TO HOW THERE IS AN APPARENT MISTAKE IN HIS EARLIER ORDER DATED 08-04-2 009. HE SUBMITTED THAT UNDER THESE FACTS, THIS ORDER OF LD. CIT(A) SHOULD BE QUASHED FOR BOTH THE ASSESSMENT YEARS. 4. AS AGAINST THIS, IT WAS SUBMITTED BY LD. AR OF T HE ASSESSEE THAT CORRECT FACTS WERE NOT NOTED BY LD. CIT(A) IN HIS EARLIER O RDER DATED 08-04-2009 AND HENCE THERE IS AN APPARENT MISTAKE IN THE ORDER PAS SED BY LD. CIT(A) WHICH WAS RECTIFIED BY HIM AS PER THE IMPUGNED ORDER AND THEREFORE THIS ORDER SHOULD BE UPHELD. IT WAS HIS ALTERNATIVE SUBMISSION, THAT IF IT AS CONSIDERED NECESSARY TO CONFRONT THE ASSESSING OFFICER ON THE RELEVANT A SPECT, THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH D ECISION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT IN THE IMPUGNED ORDER, LD. CIT(A) HAS NOT GIVEN A FINDING AS TO WHAT WAS AN APPARENT MISTAKE IN HIS EARLIER ORDER DATED 08-04-2 009 AND IN THE ABSENCE OF ANY FINDING ON THIS ASPECT, WE CANNOT DECIDE THIS I SSUE IN DISPUTE BEFORE US AND WE FEEL THAT IN THE INTEREST OF NATURAL JUSTICE , THIS MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION AND HENCE , WE SET ASIDE THE ORDER OF LD. CIT(A) FOR BOTH THE YEARS AND RESTORE THE MATTE R BACK TO THE FILE OF LD. ITA NO.2425-26/AHD/2010 A.YS.01-02 & 02-03 DY.DIT(EXEMPTION) ABD V. LIONS DIST. 323-B FOUNDATION PAGE 3 CIT(A) FOR FRESH DECISION BY WAY OF SPEAKING ORDER. LD. CIT(A) SHOULD FIRST GIVE HIS FINDING AS TO WHAT WAS THE APPARENT MISTAKE IN HIS EARLIER ORDER DATED 08- 04-2009 AND IF HE FINDS ANY SUCH MISTAKE, THEN ONLY HE SHOULD RECTIFY THE SAME. NEEDLESS TO SAY, HE SHOULD PROVIDE ADEQUATE O PPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, BOTH THE REVENUES APPEALS STAND ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- ( G.C.GUPTA ) ( A.K.GARODIA ) (VICE PRESIDENT) (ACCOUNTANT MEMBER) %&'- 31/12/2012 ) * DKP* $ $ $ $ ++, ++, ++, ++, -,' -,' -,' -,' / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. &&+2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. ,67 +++2, +2#, ) / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ $ , /TRUE COPY/ >/) & +2#, ) * STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 21/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 24/12 4) DATE OF CORRECTION 31/12 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 31/12 7) ORDER UPLOADED ON 31/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 31/12