Shri Suresh D.Thakkar, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 252/AHD/2011

• Counselvise Citation: 25220514 RSA 2011
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , . .!'#$, % & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A. NO.252/AHD/2011 ( ( ) ( ) ( ) ( ) / / / / ASSESSMENT YEAR : 2007-08) SHRI SURESH D.THAKKAR 34, MANIRATNA I NR.GANESH LAWANA WADI VASANA, AHMEDABAD ( ( ( ( / VS. THE INCOME TAX OFFICER WARD-9(4) AHMEDABAD * % ./+, ./ PAN/GIR NO. : ADDPT 9463 E ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI ASEEM THAKKAR ./*- 1 0 / RESPONDENT BY : SHRI VINOD TANWANI, SR.D.R. (2 1 3% / / / / DATE OF HEARING : 18/11/2011 4') 1 3% / DATE OF PRONOUNCEMENT : 25-11-2011 5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XV, AHMEDABAD DATED 25 TH NOVEMBER-2010 PASSED FOR ASSESSMENT YEAR 2007-08, WHEREIN THE CIT(A) HAS DISMISSED THE APPEAL ON THE GROUND O F NON- APPEARANCE/NON-ATTENDANCE OF APPELLATE PROCEEDINGS. IT IS EVIDENT FROM THE IMPUGNED ORDER OF LD.CIT(A) THAT SEVERAL OPPORT UNITIES OF HEARING WERE GRANTED TO THE ASSESSEE BUT DESPITE ALL THOSE OPPORTUNITIES, ONE AFTER ITA NO.252/AHD/ 2011 SHRI SURESH D.THAKKAR VS. ITO ASST.YEAR - 2007-08 - 2 - ANOTHER ADJOURNMENTS WERE SOUGHT, BUT NO PROPER COM PLIANCE WAS MADE. RESULTANTLY, THAT APPEAL WAS DISMISSED. 2. NOW BEFORE US, LD.AR MR.ASEEM THAKKAR HAS CONTES TED THAT ILL- HEALTH WAS ONE OF THE REASON OF NON-APPEARANCE BEFO RE THE FIRST APPELLATE AUTHORITY, HOWEVER, THE PROCEEDINGS WERE ATTENDED B EFORE THE ASSESSING OFFICER BY FILING THE REQUISITE DETAILS AVAILABLE A T THAT TIME. LD.AR MR.ASEEM THAKKAR HAS SINCERELY EXPRESSED HIS REGRET S OF NON-APPEARANCE WHICH, ACCORDING TO HIM, WAS CAUSED DUE TO UNAVOIDA BLE CIRCUMSTANCES AT THAT TIME. NOW HE HAS PLEADED THAT AT LEAST AN OPP ORTUNITY MAY KINDLY BE GRANTED SO THAT THIS APPEAL CAN BE DECIDED ON MERIT S. 3. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LD.DR MR.VINOD TANWANI HAS PLACED RELIANCE ON THE ORDER OF THE ASS ESSING OFFICER AND VEHEMENTLY OPPOSED THE REQUEST OF RESTORATION OF TH IS APPEAL TO THE STAGE OF FIRST APPELLATE AUTHORITY. ACCORDING TO HIM, TH IS APPELLANT DOES NOT DESERVE ANY SYMPATHY SINCE HE DELIBERATELY AVOIDED THE PROCEEDINGS BOTH BEFORE THE A.O. AND LD.CIT(A). 4. UNDISPUTEDLY IN THIS APPEAL, THE LEARNED CIT(APP EALS) HAD GRANTED FEW OPPORTUNITIES OF HEARING AND ULTIMATELY FOR WANT OF COMPLIANCE SHE HAD HELD THAT NO OPTION WAS LEFT BUT TO DISMISS THIS APPEAL BY CONFIRMING THE ADDITIONS MADE BY THE ASSESSING O FFICER. IN THIS APPEAL, THE APPELLANTS GRIEVANCE THROUGH GROUND NO S.1 & 2 ARE THAT THE EX-PARTE DECISION OF LD.CIT(A) WAS AGAINST THE NATURAL JUST ICE BECAUSE AN ADJOURNMENT APPLICATION WAS MOVED SEEKING TIME TO F ILE CERTAIN DETAILS , ITA NO.252/AHD/ 2011 SHRI SURESH D.THAKKAR VS. ITO ASST.YEAR - 2007-08 - 3 - HOWEVER, INSTEAD OF GRANTING FURTHER TIME AN EX-PARTE ORDER WAS MADE BY THE LEARNED CIT(APPEALS). IF WE CONSIDER THE EX PRESSED PROVISION OF SECTION 250(6) OF THE I.T.ACT, THEN IT IS EXPECTED FROM THE FIRST APPELLATE AUTHORITY TO STATE THE POINTS ARISING IN THE APPEAL AND THEN STATE THE REASONS BEFORE ARRIVING AT A DECISION. IN OTHER WO RDS, PROVISIONS OF SECTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLE OF NATURAL JUSTICE AND IN OUR CONSIDERED OPINION, SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. IN THE LIGHT OF THE ADJOURNMENTS SOUGHT BY THIS APP ELLANT AND THE FACTS NARRATED A DESTINATION CAN BE DRAWN BETWEEN A CASE WHERE THE ADJOURNMENTS WERE SOUGHT IN A CASUAL OR NON-SERIOUS MANNER AND A CASE WHERE AN ADJOURNMENT WAS SOUGHT WITH SERIOUSNESS AS SIGNING CERTAIN SPECIFIC REASONS, WITH THE INTENTION TO SUPPLY THE REQUISITE INFORMATION. WHEREAS IN THE FORMER, CONSIDERING THE PREJUDICES T O THE OTHER SIDE, IT WILL BE RELEVANT, NOT TO BE COMMONLY LENIENT. BUT IN TH E LATER CASE, WHEN ADJOURNMENTS WERE SOUGHT WITH SPECIFIC PURPOSES, TH EN NO SUCH CONSIDERATION MAY ARISE, HENCE IN SUCH CASES THE AP PLICANT DESERVES A LIBERAL APPROACH. ANYWAY, NO HARD AND FAST RULE CA N BE LAID DOWN IN THIS REGARD. THE COURTS ARE FULLY EMPOWERED TO EXERCISE ITS JURISDICTION ON THE FACTS OF EACH CASE, NEVERTHELESS, KEEPING IN MI ND THE EXPRESSION SUFFICIENT AND REASONABLE OPPORTUNITY BE GRANTED WITH THE OBJECT OF ADVANCING THE PRINCIPLE OF SUBSTANTIAL JUSTICE. I N OUR CONSCIENTIOUS OPINION, SUBSTANTIAL JUSTICE IS OF PRIME IMPORTANCE . WE ARE, THEREFORE, OF THE VIEW THAT ONCE THE EXPRESSION SUFFICIENT OPPOR TUNITY HAS BEEN USED, THEN SUCH EXPRESSION SHOULD RECEIVE A LIBERAL CONST RUCTION. MOREOVER, WE KNOW THAT GENERALLY A LITIGANT PURSUE THE LITIGATIO N WITH DUE DILIGENCE AND ORDINARILY DO NOT ALLOW ITS APPEAL TO BE LOST BY DE LIBERATELY DEFAULTING IN ITA NO.252/AHD/ 2011 SHRI SURESH D.THAKKAR VS. ITO ASST.YEAR - 2007-08 - 4 - PURSUING HIS CASE. USUALLY A VIGILANT LITIGATION T AKES REASONABLE STEPS TO SAFE-GUARD HIS INTEREST. AS FAR AS THE INSTANT APP EAL IS CONCERNED, THOUGH THE APPELLANT APPEARED TO BE NOT FAIRLY VIGILANT BU T THIS FACT CAN ALSO NOT BE IGNORED THAT THE APPELLANT WAS IN POSSESSION OF SOME INFORMATION AND/OR DETAILS; WHICH THEY WANTED TO FILE; BUT DUE TO SOME UNAVOIDABLE CIRCUMSTANCES THOSE DETAILS/EXPLANATIONS COULD NOT BE FILED. RATHER, IN ASSESSEES OWN CASE A COMPILATION CONTAINING 161 PA GES IS PLACED BEFORE US TO DEMONSTRATE THAT THOSE DETAILS AND EVIDENCES ARE ALL PRIME IMPORTANCE WHICH OUGHT TO HAVE BEEN ADJUDICATED AT THE FIRST APPELLATE STAGE. LD.AR MR.ASEEM THAKKAR HAS ALSO STATED WI TH FULL SENSE OF RESPONSIBILITY, SINCE THE REQUISITE DETAILS HAVE A LREADY BEEN IN POSSESSION AND IF AN OPPORTUNITY BE KINDLY GRANTED, THEN THE S AME SHALL BE FURNISHED WITHOUT ANY DELAY. 5. AS FAR AS THE CONDUCT OF THE ASSESSEE IS CONCERN ED, NATURALLY WE DO NOT APPROVE THE SAME. BUT THIS FACT CAN ALSO BE NO T DENIED THAT UNLIKE CIVIL AND CRIMINAL DISPUTES IN THE INCOME-TAX PROCE EDINGS, THE REVENUE AUTHORITIES ARE EXPECTED TO GET AT THE TRUTH AFTER PROPER INVESTIGATION ENQUIRY. HENCE, THE FIRST APPELLATE AUTHORITY IS A LSO EXPECTED TO DECIDE AN ISSUE ON PROPER CONSIDERATION OF THE MATERIAL PLACE D BEFORE HIM. THERE HAS TO BE AN ADJUDICATION ON MERITS. THEREFORE, IN THE CASE OF J.K.SYNTHETICS LTD. VS. COLLECTOR OF CENTRAL EXCISE REPORTED AT 142 CTR 521 (SC), IT WAS HELD THAT APART FROM THE INHERENT POWER OF PASSING A JUDGEMENT, EVERY TRIBUNAL AND COURT CONSTITUTED TO DO JUSTICE. THEY ARE ALSO CLOTHED WITH THE POWER TO SET ASIDE AN ORDER P ASSED EX-PARTE , IF IT IS FOUND THAT THE RESPONDENT HAD FOR SUFFICIENT CAUSE BEEN UNABLE TO APPEAR, ITA NO.252/AHD/ 2011 SHRI SURESH D.THAKKAR VS. ITO ASST.YEAR - 2007-08 - 5 - SO THAT TO SECURE THE ENDS OF JUSTICE. RESULTANTLY, IN THE FITNESS OF CIRCUMSTANCES, WE DEEM IT PROPER TO RESTORE THE OTH ER GROUNDS, WHICH PERTAINED TO THE MERITS OF THE CASE, BACK TO THE ST AGE OF FIRST APPELLATE AUTHORITY TO BE DECIDED DE NOVO AFRESH AS PER LAW. BUT SIMULTANEOUSLY, TO STRIKE THE RIGHT BALANCE, WE HEREBY DIRECT THIS APP ELLANT TO SUO MOTU APPEAR BEFORE THE LEARNED CIT(APPEALS) ON OR BEFORE THE FIRST WEEK OF FEBRUARY-2012 WITHOUT WAITING FOR ANY COMMUNICATION OR SERVICE OF NOTICE OF HEARING FROM THE REVENUE DEPARTMENT. THI S DATE HAS BEEN GIVEN BY US AS CONSENTED BY THE LD.AR AND WE EXPECT DUE COMPLIANCE WITH-OUT DILLY-DALLY OR DAWDLE. THIS APPELLANT IS DIRECTED TO PRODUCE ALL THE EVIDENCES AND BOOKS OF ACCOUNT AS REQUIRED UNDE R LAW ON THE DAY OF HEARING INSTEAD OF EXPECTING ANY COMMUNIQU FROM TH E SIDE OF THE REVENUE AUTHORITIES. WE ALSO DIRECT THIS APPELLANT NOT TO SEEK FRIVOLOUS ADJOURNMENT AND GET THIS APPEAL FINALIZED AT AN EAR LY DATE. NEVERTHELESS, LEARNED CIT(APPEALS) OR THE REVENUE AUTHORITIES ARE AT LIBERTY TO ISSUE NECESSARY NOTICES, IF DEEM FIT, AS PER LAW, SO THA T THE ISSUES INVOLVED CAN BE RESOLVED IN ACCORDANCE WITH THE PROVISIONS OF TH E ACT. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 25/ 11 /2011 63..(, .(../ T.C. NAIR, SR. PS ITA NO.252/AHD/ 2011 SHRI SURESH D.THAKKAR VS. ITO ASST.YEAR - 2007-08 - 6 - 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-XV, AHMEDABAD 5. 7 >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..21.11.11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.11.11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 25.11.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.11.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER