Shri Dhanesh P. Soni, Ahmedabad V. The Income tax Officer, Ward-3(2), Ahmedabad

ITA 250/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2157 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 250; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.250/AHD/2017 (ASSESSMENT YEAR : 2009-10) DHANESH P. SONI, PROP. DEV SATYA CORPN 2296/2, MANEK CHOWK, AHMEDABAD. VS. ITO, WARD 3(2), AHMEDABAD. [PAN NO. ADIPS 1555 M] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI TUSHAR HEMANI, A.R. RESPONDENT BY : SHRI JAMES KURIAN, SR. D.R. DATE OF HEARING 13.06.2019 DATE OF PRONOUNCEMENT 25.06.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE EX-PARTE ORDER DATED 24.11.2016 PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS) 4, AHMEDABAD ARISING OUT OF THE ORDER DATED 26.03 .2014 PASSED BY THE INCOME TAX OFFICER, WARD 3(2), AHMEDABAD UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO T HE ACT) FOR ASSESSMENT YEAR 2009-10. 2. THE RETURN OF INCOME FILED BY THE ASSESSEE DATED 20.09.2009 DECLARING TOTAL INCOME AT NIL ASSESSMENT WAS FINALIZED U/S 14 3(3) OF THE ACT ON ITA NO.250/AHD/2017 DHANESH P SONI VS. ITO ASSESSMENT YEAR 2009-10 - 2 - 30.11.2011, DETERMINING TOTAL INCOME AT RS.74,02,41 0/- BY MAKING FOLLOWING ADDITIONS: DISALLOWANCE OF INTEREST U/S 36(1)(III) 1,71,802/- ADDITION U/S 68 11,00,000/- SHORT TERM CAPITAL GAIN 62,34,253/- PENALTY PROCEEDING WAS ALSO INITIATED IN RESPECT OF SERIAL NO. 2 & 3, WHICH WAS CULMINATING INTO LEVY OF PENALTY OF RS.22 ,66,283/- U/S 271(1)(C) OF THE ACT BY THE INCOME TAX OFFICER, WARD-3(2) ON 26. 03.2014. IN APPEAL, NOTICES WERE ISSUED U/S 250 OF THE ACT. IT IS EVIDE NT FROM THE RECORD THAT THE APPELLANT FILED ADJOURNMENT APPLICATION ON SEVERAL TIMES BUT MOST OF THE TIME, THE ASSESSEE WAS REPRESENTED BY THE AUTHORIZED REPR ESENTATIVE AND ADJOURNMENT APPLICATIONS WERE MOVED. THE LEARNED CIT(A) ALSO KI ND ENOUGH TO GRANT ADJOURNMENT. HOWEVER, THE TAX CONSULTANT OF THE ASS ESSEE COULD NOT SEEK ADJOURNMENT ON 23.11.2016 SINCE HIS REAL NEPHEW WAS GETTING MARRIED ON 23.11.2016 AND HE BEING ELDEST ONE IN HIS FAMILY AN D HIS REAL BROTHER DIED AT YOUNG AGE, HE COULD NOT ATTEND THE OFFICE DUE TO SU CH MARRIAGE CEREMONY IN THOSE DAYS. THE MATTER REMAINED UNATTENDED AND HENC E EX-PARTE ORDER WAS PASSED AS SUBMITTED BY THE LEARNED COUNSEL APPEARIN G FOR THE ASSESSEE BEFORE US. IT WAS FURTHER SUBMITTED BY THE LEARNED COUNSEL THAT THE OBSERVATION MADE BY THE LEARNED CIT(A) THAT THE ASSESSEE IS NEITHER CO-OPERATIVE NOR INTERESTED IN DISPOSAL OF THE APPEAL IS NOT CORRECT. THE MAIN REASON FOR SEEKING ADJOURNMENT WERE THE PENDENCY OF QUANTUM APPEAL BEF ORE THE TRIBUNAL WHEN THE NORMAL PRACTICE IS TO KEEP THE PENALTY IN ABEYA NCE AND KEEP THE APPEAL PENDING TILL SUCH DISPOSAL OF THE QUANTUM APPEAL. T HE ASSESSEE WAS OTHERWISE ALL ALONG BEING VIGILANT. IT ALSO APPEARS FROM THE ORDER UNDER CHALLENGE THAT THE LEARNED CIT(A) WITHOUT MAKING ANY PERSONAL OBSERVAT ION REITERATED THE STAND ITA NO.250/AHD/2017 DHANESH P SONI VS. ITO ASSESSMENT YEAR 2009-10 - 3 - TAKEN BY THE LEARNED AR. NO REASON HAS BEEN ASSIGNE D IN DECIDING THE POINTS IN DISPUTE AND IN SUPPORTED OF HIS CONCLUSION THERE TO. WHILE CONCURRING WITH THE VIEW TAKEN BY THE LEARNED AO THE LEARNED CIT(A) HAS NEITHER RAISED ANY SPECIFIC POINT ON THE BASIS OF THE DETAILS AVAILABL E BEFORE HIM WHICH IS REQUIRED TO BE FOLLOWED AS CONTEMPLATED SECTION 5 OF SUB SEC TION 250 OF THE ACT AS ARGUED BY THE LEARNED AR AT THE TIME OF HEARING. IN THAT VIEW OF THE MATTER SINCE THE EXERCISE OF POWER BY THE LEARNED CIT(A) I S NOT IN COHERENCE MANDATE WITH THE UNDER SECTION 250(6) OF THE ACT, HE PRAYS FOR SET ASIDE THE ISSUE TO THE LEARNED CIT(A) FOR FRESH HEARING OF THE APPEAL. IN SUPPORT OF HIS ARGUMENT, HE FURTHER RELIED UPON THE ORDER PASSED BY THE CO-ORDI NATE BENCH IN ITA NO.146, 147 AND 148/AHD/2017 COPY WHEREOF WAS ALSO SUBMITTE D BEFORE US. HOWEVER, THE LEARNED DR FAILED TO CONTROVERT SUCH CONTENTION MADE BY THE LEARNED AR IN SUPPORT OF HIS CASE. 3. HAVING HEARD THE LEARNED COUNSEL APPEARING FOR T HE PARTIES HAVING REGARD THE FACTS AND CIRCUMSTANCES OF THE CASE AND UPON PERUSAL OF THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO.146, 147 & 148/AHD/2017 IN IDENTICAL ISSUE. WE FIND SUBSTANCE IN THE ARGUMENT ADVANCED BY THE LEARNED AR. THE RELEVANT PORTION OF THE JUDGMENT PASSED BY THE CO-ORDINATE BENCH IS AS FOLLOWS: 4. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT IN PARA-2 OF THE IMP UGNED ORDERS, THE LD.CIT(A) HAS NOTICED THE DETAILS OF HEARING AND HO W THE ASSESSEE HAS COMPLIED WITH THE DIRECTIONS. NO DOUBT THE HEARINGS IN ALL THESE APPEALS WERE FIXED ON SEVEN OCCASIONS. OUT OF SEVEN OCCASIO NS, THE ASSESSEE APPEARED ON SIX OCCASIONS, BUT HEARING WAS ADJOURNE D. ON THE SEVENTH OCCASION, NO ONE COULD APPEAR BEFORE THE LD.CIT(A). ITA NO.250/AHD/2017 DHANESH P SONI VS. ITO ASSESSMENT YEAR 2009-10 - 4 - 5. THE LD.CIT(A) HAS CONCLUDED THE HEARING AND DISM ISSED THE APPEALS BY WAY OF SEPARATE ORDERS ON 15.11.2016. SUB-SECTIO N (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 CONTEMPLATES THAT THE L D.CIT(A) WOULD STATES THE POINTS IN DISPUTE AND THEREAFTER ASSIGN REASONS IN SUPPORT OF CONCLUSIONS. ON PERUSAL OF THE IMPUGNED ORDERS WOUL D INDICATE THAT THE LD.CIT(A) HAS SIMPLY CONCURRED WITH THE AO WITHOUT FORMULATING SPECIFIC POINTS AND TAKING NOTE OF DETAILS AVAILABL E BEFORE THE LD.CIT(A). IN A WAY, THE APPEALS WERE DISMISSED IN SUMMARY MAN NER. THIS EXERCISE OF POWER AT THE END OF THE LD.CIT(A) IS NOT IN COHE RENCE WITH THE MANDATE OF SECTION 250(6) OF THE ACT, THEREFORE, WE SET ASIDE ALL THESE ORDERS AND RESTORE ALL THE ISSUES IN THESE THREE AS SESSMENT YEARS TO THE FILE OF THE LD.CIT(A) FOR DECIDING THEM ON MERIT. W E FURTHER DIRECT THE ASSESSEE TO COOPERATE WITH THE LD.CIT(A) AND REFRAI N HIMSELF FROM SEEKING UNNECESSARY ADJOURNMENTS. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSE. RELYING ON THE RATIO LAID DOWN BY THE LEARNED BENCH , WE ARE OF THE OPINION THAT THE ASSESSEE ARGUED TO HAVE BEEN GIVEN ANOTHER OPPORTUNITY OF HEARING. SINCE THE ORDER PASSED BY THE LEARNED CIT( A) SUFFERS FROM THE INHERENT LACUNA BY NOT FOLLOWING THE MANDATE PRESCR IBED UNDER SECTION 6 TO SUB SECTION 250 OF THE ACT AS DISCUSSED ABOVE THE ORDER IS LIABLE TO BE QUASHED. IN THAT VIEW OF THE MATTER, WE FIND IT FIT AND PROPER TO SET ASIDE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) TO ADJUDICATE THE SAME AFRESH UPON GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND UPON TAK ING INTO CONSIDERATION THE EVIDENCES PLACED ON RECORD AND THE EVIDENCES WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE APPEAL. WE MA KE IT CLEAR THAT WHILE PASSING THE ORDER THE LEARNED CIT(A) WILL PASS COGENT REASO N IN SUPPORT OF HIS CONCLUSION IN ACCORDANCE WITH LAW. HOWEVER, WE ALSO MAKE IT CLEAR THAT THE ASSESSEE WOULD ALSO RENDER ASSISTANCE AND/OR CO-OPE RATE WITH THE LEARNED ITA NO.250/AHD/2017 DHANESH P SONI VS. ITO ASSESSMENT YEAR 2009-10 - 5 - CIT(A) WITHOUT ASKING FOR ANY UNNECESSARY ADJOURNME NT. HENCE, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/06/2019 SD/- SD/- ( PRAMOD KUMAR ) ( M S. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 25/06/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-4, AHMEDABAD. 5. , , / DR, ITAT, AHMEDABAD 6. !' #$ / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , !' / ITAT, AHMEDABAD 1. DATE OF DICTATION 14.06.2019 (DICTATION PAGES 5) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.06.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 19.06.2019 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