R.R. Patel Gases Pvt.Ltd., Ahmedabad V. The Income tax Officer, Ward-5(3), Ahmedabad

ITA 2480/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57336 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A TIRKEY
• Assessee Lawyers: S N DIVATIA
• Keywords: Principle of natural justice

Judgement Text

ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI A.M.) I.T.A. NO. 2480 /AHD/2011 (ASSESSMENT YEAR: 2007 - 08 ) R.R. PATEL GASES PVT. LTD., 229, BHAVANPURA PITH, NR. VIVEKANAND BUILDING, OUTSIDE RAIPUR GATE, AHMEDABAD. (APPELLANT) VS. INCOME TAX OFFICER, WARD 5(3), PRATYAKASHA BHAVAN, NEAR PANJARA POLE, AMBAWADI, AHMEDABAD. (RESPONDENT) PAN: AACCR 4692Q APPELLANT BY : SHRI S.N. DIVATIA. RESPONDENT BY : SHRI A. TIRKEY, SR. D.R. ( )/ ORDER DATE OF HEARING : 7-3-2012 DATE OF PRONOUNCEMENT : 30-3-2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT (A)-XI, AHMEDABAD DATED 13-9-2011 FOR THE ASSESSMEN T YEAR 2007-08. 2. THE MAIN ISSUE INVOLVED IN THIS APPEAL IS THAT T HE CIT (A)-XI AHMEDABAD HAS PASSED EX-PARTE ORDER WITHOUT GIVING PROPER OPPORTUNITY AND IN VIOLATION OF PRINCIPLES OF NATUR AL JUSTICE. ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 2 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE C OMPANY HAS FILED ITS RETURN OF INCOME ON 31-10-2007 ELECTRONICALLY, DECLARING LOSS AT RS.1,29,079/-. THE ASSESSING OFFICER AFTER MAKING A DDITIONS ON VARIOUS COUNTS DETERMINED THE TOTAL INCOME OF THE A SSESSEE AT RS. 19,57,420/-. 4. THEREAFTER THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE LD. CIT (A). CIT (A) DECIDED THE CASE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR THE REASON THAT NOBODY ATTENDED THE HEARINGS. A GAINST THE ORDER OF THE CIT (A), THE ASSESSEE IS NOW IN APPEAL BEFORE U S. 5. IN APPEAL BEFORE US, APART FROM THE VARIOUS GROU NDS WITH REFERENCE TO THE DISALLOWANCES MADE BY THE ASSESSIN G OFFICER AND UPHELD BY CIT (A), IT HAS ALSO RAISED A GROUND WITH REFERENCE TO PASSING OF AN EXPARTE ORDER BY CIT (A) ON THE GROUN D OF NON- ATTENDANCE AND THEREBY VIOLATING, THE PRINCIPLES OF NATURAL JUSTICE. THE LD. AR HAS STATED THAT THE NON-ATTENDANCE ON THEIR PART WAS ON ACCOUNT OF GENUINE REASONS. THE LD. AR POINTED OUT TO THE STATEMENT OF FACTS PLACED BEFORE US WHEREIN HE HAS STATED AS UNDER:- 2.10 BEING AGGRIEVED, THE APPELLANT PREFERRED AP PEAL TO CIT (A) WHEN THE FOLLOWING PROCEEDINGS TOOK PLACE:- I) THIS APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME ON 23- 12-2010. WHEN NOBODY COULD ATTEND ON ACCOUNT OF THE TAX CONSULTANT; C.A. SHRI M.P. SUTARIA WAS BUSY WITH TI ME BARRING ASSESSMENTS. ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 3 II) THE NEXT DATE OF HEARING WAS 5.5.2011 IN RESPON SE TO THE NOTICE DT. 14.5.2011. HOWEVER, EVEN ON THIS DATE, N O HEARING COULD TAKE PLACE BECAUSE AS TOLD TO US, HON . SHREEDHAR, THE PREDECESSOR CIT (A) WAS NOT TAKING HEARINGS IN VIEW OF THE REPRESENTATION MADE BY HIM ON ACCOUNT OF HIS TRANSFER AS CIT (DR) AT ITAT, AHMEDA BAD SO THAT THE NOTING WAS ALSO MADE ON THE ORDER SHEET TO THE EFFECT THAT THE CASE WAS ADJOURNED. IT IS THEREFORE , NOT CORRECT TO STATE IN THE APPELLATE ORDER THAT EVEN T HIS NOTICE REMAINED UN-COMPLIED WITH. III) THEREAFTER, A FRESH NOTICE OF HEARING WAS ISSU ED ON 2-8- 2011 FIXING THE HEARING ON 11-8-2011 BY THE CIT (A) -XI, AHMEDABAD. THE APPELLANT HAD SOUGHT ADJOURNMENT BY A WRITTEN APPLICATION AND IT WAS ADJOURNED TO 2-9-201 1. IV) NOW, ON 2-9-2011, THERE WAS NOT ANY NON-ATTENDA NCE ON PART OF THE APPELLANT BECAUSE SHRI VIVEKBHAI CHAVDA ADVOCATE FROM SHRI S. N. DIVATIA & CO. ADVOCATES AP PEARED BEFORE CIT (A)-XI, ABAD SHRI ANILKUMAR AND HE WAS ORALLY TOLD THAT HE WAS FIXING THE HEARING OF THE CASES A DVOCATE- WISE SO THAT HE SHOULD APPEAR ON 9-9-2011 IN ALL T HE MATTERS REPRESENTED BY HIM. THOUGH THE WRITTEN SUBMISSIONS DATED 31-8-2011 WITH BULKY PAPER-BOOK RUNNING INTO 169 PAGES WAS READY AND HE WAS REQUEST ED TO TAKE THE SAME ON RECORD BUT CIT (A) DID NOT ACCEPT THE SAME STATING THAT IT MAY BE FILED AT THE TIME OF NE XT HEARING. THE COPY OF THE SAID LETTER IS ENCLOSED AND THE PAP ER BOOK WILL BE PRODUCED AT THE TIME OF HEARING OF THIS APP EAL. V) NOW, WHEN SHRI VIVEK CHAVDA APPEARED ON 9-9-2011 , ALL THE MATTERS SUCH AS RAJKA ESTATE AND RADSON LABORATORIE S P. LTD., RAGONA LUBRICANTS, OMPRAKASH F. SHAH ETC. WER E TAKEN UP FOR HEARING BUT THE MATTER OF R.R. PATEL G ASES PVT. ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 4 LTD., COULD NOT BE LOCATED IN THAT BUNCH SO THAT HE WAS ORALLY TOLD THAT A FRESH NOTICE OF HEARING WOULD BE ISSUED. AS FAR AS OTHER CASES WERE CONCERNED, THE CASE OF OMPRAKASH SHAH WAS HEARD AND REST WERE ADJOURNED TO 29- 9-2011 AS PER NOTING MADE IN THE ORDER SHEET IN RES PECTIVE CASES. HOWEVER, CIT (A) PASSED AN EX-PARTE ORDER ON 13-9-2 011 IGNORING THE ATTENDANCE AND DISCUSSION WITH SHRI VIVEK CHAVD A ON 2-9- 2011 AND 9-9-2011. HE HAS ALSO FILED AN EXPLANATORY LETTER IN THE OFFICE OF CIT(A)- XI, AHMEDABAD ON 30-9-2011 IN THI S REGARD. (COPY ENCLOSED). UNDER THE CIRCUMSTANCES, THE EX-PA RTE DISPOSAL OF APPEAL BY CIT (A) WAS WHOLLY, ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 6. THE LD. DR DID NOT OBJECT TO THE SAID SUBMISSION S OF THE AR OF THE ASSESSEE. 7. IT IS AN UNDISPUTED FACT THAT THE ORDERS PASSED BY THE AO AND CIT (A) ARE EXPARTE ORDERS. FROM THE ABOVE STATED FACT S, IT APPEARS TO US THAT THERE WAS GENUINE REASON ON THE PART OF THE RE PRESENTATIVE OF THE ASSESSEE FOR NON ATTENDANCE BEFORE CIT (A). IN VIE W OF THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT IN THE IN TEREST OF JUSTICE AND FAIRNESS, IT SHALL BE PROPER IF THE MATTER IS RESTO RED BACK TO THE ASSESSING OFFICER FOR PROPER VERIFICATION AND ADJUD ICATION OF ALL THE ISSUES AFRESH. WE, THEREFORE, SET ASIDE THE ORDER O F CIT (A) AND RESTORE THE FILE TO ASSESSING OFFICER FOR FRESH ADJUDICATIO N. IN DOING SO, THE ASSESSING OFFICER SHALL GIVE PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THESE CIRCUMSTANCES WE HAVE NOT GONE I NTO THE MERITS OF THE CASE AND THE ASSESSMENT AS FRAMED IS SET ASIDE IN TOTO TO BE REFRAMED AGAIN. ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 5 8. . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 30- 3 - 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA 2480 /AHD/11 ASSESSMENT YEAR 2007-08. 6 1.DATE OF DICTATION 7 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 16 / 3 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 19 - 3 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 30 - 3 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 30 - 3 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 3 0 - 3 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..