Nishith Babulal Shah, Ahmedabad V. The Dy.CIT.,Circle-11, Ahmedabad

ITA 2554/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9788 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NO.2553 & 2554/AHD/2011 ASST. YEAR: 2008-09 NISHITH BABULAL SHAH. C/O M/S RAVI & DEV, C.A. 201, ARTH, BEHIND A.K. PATEL HOUSE, MITHIAKALI SIX ROADS, AHMEDABAD. VS DY. COMMISSIONER OF INCOME- TAX, CIRCLE-11, AHMEDABAD. APPELLANT RESPONDENT PAN -AKQPS 8934D APPELLANT BY SHRI UMAID SINGH BHATI, AR RESPONDENTS BY SMT. SONIA KUMAR, SR.DR DATE OF HEARING: 05/01/2016 DATE OF PRONOUNCEMENT: 08/01/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THESE TWO APPEALS OF ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT(A)-XVI, AHMEDABAD IN APPEAL NO.CIT(A)- XVI/DCIT/CIR-11/532/10-11, AND IN APPEAL NO.CIT(A) -XVI/DCIT/CIR- 11/531/10-11, DATED 29.08.2011 RESPECTIVELY, FOR AS ST. YEAR 2008-09. ASSESSMENT WAS FRAMED BY THE DCIT, CIR-11, AHMEDABA D, U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER RE FERRED TO AS THE ACT) ON 29.12.2010. SINCE BOTH THE APPEALS PERTAIN TO THE SAME ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 2 ASSESSEE, THESE WERE HEARD TOGETHER AND ARE BEING D ISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.2553/AHD/2011 FOR ASST. YEAR 2008-09 F OLLOWING GROUNDS ARE RAISED:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DISM ISSING THE APPEAL OF THE APPELLANT. 2. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT DURING THE COURSE OF APPELLATE PROCEEDINGS AND IN DISMISSING T HE APPEAL AFTER ISSUING ONLY ONE NOTICE OF HEARING. 3. THE LD. CIT(A) FURTHER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT DID NOT WANT TO PURSUE THE APPEA L DESPITE THE FACT THAT THE APPELLANT HAD PAID RS.250/- AS FI LING FEE AND RETAINED A NEW ADVOCATE (OTHER THAN HIS CHARTERED ACCOUNTANT, WHO HAD REPRESENTED HIM BEFORE THE LD. AO) TO REPRESENT HIS MATTER BEFORE THE LD. CIT(A). 4. THE APPELLANT MAY BE ALLOWED TO ADD, AMEND, ALTE R OR RAISE ADDITIONAL GROUNDS OF APPEAL. 3. IN ITA NO.2554/AHD/2011 FOR ASST. YEAR 2008-09 F OLLOWING GROUNDS ARE RAISED:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DISM ISSING THE APPEAL OF THE APPELLANT. 2. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE APPELLANT DURING THE ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 3 COURSE OF APPELLATE PROCEEDINGS AND IN UPHOLDING TH E ADDITIONS AFTER ISSUING ONLY ONE NOTICE OF HEARING. . 3. THE LD. CIT(A) FURTHER ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT DID NOT WANT TO PURSUE THE APPEA L DESPITE THE FACT THAT THE APPELLANT HAD PAID RS.1000/- AS F ILING FEE AND RETAINED A NEW ADVOCATE (OTHER THAN HIS CHARTER ED ACCOUNTANT, WHO HAD REPRESENTED HIM BEFORE THE LD. AO) TO REPRESENT HIS MATTER BEFORE THE LD. CIT(A). 4. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONF IRMING THE ADDITIONS OF RS.5,27,640/- ON THE BASIS THAT STATE MENT OF FACTS DID NOT CONTAIN ANY REASON TO THE EFFECT THA T FINDING OF LD. AO WAS INCORRECT, WITHOUT APPRECIATING THE FACT THAT AS NAME SUGGESTS A STATEMENT OF FACTS WOULD ONLY CON TAIN FACTUAL ASPECTS OF A MATTER AND FOR ARGUMENTS AND R EASONS, HEARING HAS BEEN PRESCRIBED. 5. THE APPELLANT MAY BE ALLOWED TO ADD, AMEND, ALTE R OR RAISE ADDITIONAL GROUNDS OF APPEAL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. BOTH THE LD. REPRESENTATIVES AGREED THA T THERE WAS NO APPEARANCE ON BEHALF OF THE ASSESSEE BEFORE THE FIR ST APPELLATE AUTHORITY AND THE CIT(A) HAS PASSED EX PARTE ORDERS IN BOTH THE CASES. AFTER CONSIDERING THE SUBMISSIONS OF BOTH TH E LD. REPRESENTATIVES AND THE ORDERS OF FIRST APPELLATE A UTHORITY WE FIND THAT LD. CIT(A) HAS PASSED EX PARTE ORDERS IN BOTH THE C ASES WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. SO IT IS OBSERVED THAT THERE IS CLEAR VIOLATION OF NATURAL J USTICE. ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 4 5. THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM I T JUST AND PROPER TO REMIT BACK THE APPEALS TO THE FILE OF CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF HE ARING TO THE ASSESSEE AND PASS THE ORDERS IN ACCORDANCE WITH LAW . THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08/01/2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 08/01/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, AHMEDABAD ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 5 1. DATE OF DICTATION: 6/1/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 7/1/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 8/1/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: