Shri Gulamhaider Yusufali Varteji, Bhavnagar V. The ACIT.,Cent,-1, Bhavnagar

ITA 2545/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1904 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABAD (BEFORE HONBLE SHR I T.K. SHARMA, J.M .) I.T.A. NO. 2545/AHD./2009 ASSESSMENT YEAR : 2005-2006 SHRI GULAMHAIDER YUSUFALI VARTEJI, BHAVNAGAR -VS- ACIT, CENTRAL-I, BHAVNAGAR (PAN : ABBPV 0520C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M. K. PATEL, A.R . RESPONDENT BY : SHRI VIMALENDU VERMA, D .R. O R D E R THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 05.12.2008 PASSED EX PARTE QUA THE ASSESSEE, BY THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS)-XX, AHMEDABAD FOR THE ASSESSMENT YEAR 2005-2006. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE AS UNDER: 1 . THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN DECIDING THE APPEAL EX-PARTE AND NOT PROVIDING SUFFICIENT OPPOR TUNITY TO THE ASSESSEE. 2. THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED I N LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY OF RS.1,36,880/- U/S. 271(1)(C) OF THE ACT. 3. THAT, ALTERNATIVELY, AND WITHOUT PREJUDICE TO ABOVE GROUNDS, THE QUANTUM OF PENALTY OUGHT TO HAVE BEEN REDUCED TO 100% INSTEAD OF 200% OF TAX SOUGHT TO BE EVADED. 2. AT THE TIME OF HEARING, SHRI M.K.PATEL, A.R. APP EARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT DUE TO SOME PERSONAL REASONS, HE COU LD NOT ATTEND THE HEARING BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ON 14.11.2008. THIS RESULTED IN PASSING OF IMPUGNED ORDER BY THE LEARNED COMMISSIONER OF INCOME TAX(APP EALS) EX-PARTE QUA THE ASSESSEE. HE ACCORDINGLY SUGGESTED THAT IN THE INTEREST OF JUSTI CE, THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AN D HE BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH. 2 ITA NO. 2545-AHD-2009 3. SHRI VIMALENDU VERMA, D.R., APPEARING ON BEHALF OF THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND CONTENDED THAT THERE IS NO USE FOR GIVING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). 4. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE ASSESSEE RE QUESTED FOR ADJOURNMENT FOR 14.11.2008. HOWEVER, THE COUNSEL OF THE ASSESSEE COULD NOT ATTE ND THE HEARING ON 14.11.2008 DUE TO SOME PERSONAL PROBLEMS. THE COUNSEL OF THE ASSESSEE ALSO EXPLAINED THAT ON THE NEXT DAY, HE WENT BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEA LS) BUT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) REFUSED TO GIVE ONE MORE OPPORT UNITY OF HEARING TO THE ASSESSEE. IN THIS CASE, IT IS PERTINENT TO NOTE THAT THE LEARNED COMM ISSIONER OF INCOME TAX(APPEALS) PASSED THE IMPUGNED ORDER ON 05.12.2008. THEREFORE, I AM OF TH E VIEW THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE PERMITTED THE LD. COUNSEL OF THE ASSESSEE TO REPRESENT THE CASE OF THE ASSESSEE ON NEXT DAY I.E. ON 15.11.2008 . IN THESE CIRCUMSTANCES, I AM OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE, IF THE IMPUGNED O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE AND HE BE DIRECTED TO DEC IDE THE APPEAL OF THE ASSESSEE AFRESH, AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES . 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 .03.2011. SD/- (T.K. SHARMA) JUDICIAL MEMBER DATED : 08 /03/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S. 3 ITA NO. 2545-AHD-2009