M/s. Harihar Saw Mills, Surat V. The Income tax Officer,Ward-5(2), Surat

ITA 2591/AHD/2011

• Counselvise Citation: 259120514 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 19-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M J SHAH
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH M/S HARIHAR SAW MILLS 4, HIRARAM COMPLEX, SUMAN DESAI NI WADI, KHATODARA, SURAT-395002 PAN NO. AABFH4932P (APPELLANT) VS THE INCOME TAX OFFICER, WARD-5(2), SURAT (RESPONDENT) ASSESSEE BY: SRI M.J. SHAH, A.R. REVENUE BY: SRI B.L. YADAV, SR .D.R. DATE OF HEARING : 16-09-2013 DATE OF PRONOUNCEMENT : 16-09-20 13 / ORDER PER : B.P. JAIN, ACCOUNTANT MEMBER:- THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A)-IV SURAT DATED 28-06-2011 FOR THE ASSESSMENT YEAR 2007 -08. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN DECIDING THE APPEAL EX-PARTE WITHOUT AFFORDING T HE APPELLANT AN OPPORTUNITY OF BEING HEARD AND REPRESENTED. THE IMP UGNED APPELLATE ORDER IS THEREFORE PASSED IN DEFIANCE OF NATURAL JU STICE AND FAIRNESS. ITA NO. 2591/AHD/2011 ASSESSMENT YEAR 2007-08 I.T.A NO. 2571/AHD/2011 A.Y. 2007-08 PAGE NO M/S. HARIHAR SAW MILLS VS. ITO 2 IT IS THEREFORE PRAYED THAT THE IMPUGNED ORDER BE Q UASHED AS INVALID AND VOID AB-INITIO. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF R S 72,210/- ON THE GROUND OF NON CHARGING OF INTEREST ON DEBIT CAPITAL BALANCE OF THE PARTNERS. 3) THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF INTEREST EXPENSE TO THE TUNE OF RS.19,341/- ON THE GROUND OF ALLEGED DIVERSION OF INTEREST BEARING FUNDS BORROWED TO NON INTEREST BEA RING FUNDS ADVANCED. 4) IT IS, THEREFORE, PRAYED THAT ALL THE ABOVE DETA ILED ADDITIONS/DISALLOWANCES CONFIRMED BY THE LEARNED CO MMISSIONER OF INCOME TAX (APPEAL) MAY PLEASE BE DELETED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE, SRI M.J. S HAH INVITED OUR ATTENTION TO ORDER OF LD. CIT(A) AT PAGE 2 PARA 2 W HICH FOR THE SAKE OF CLARITY IS REPRODUCED:- IN THIS CASE NOTICE FOR HEARING DATED 2.06.2011 OF APPEAL WAS SENT BY SPEED POST AT THE ADDRESS MENTIONED IN THE APPEAL M EMO, FIXING THE CASE FOR 15-06-2011. THE POSTAL AUTHORITIES HAVE R ETURNED THE NOTICE WITH THE REMARK LEFT. THE RECORD SHOW THAT NO AD DRESS OTHER THAN THE ONE MENTIONED ON FORM 35 HAS BEEN PROVIDED. IT THEREFORE, APPEARS THAT THE APPELLANT IS NOT INTERESTED IN PRO SECUTING HIS APPEAL WHICH IS THEREFORE BEING DISPOSED OFF ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. LEARNED COUNSEL ARGUED THAT THE NOTICE HAS NOT BEEN SERVED ON THE ASSESSEE AND THE ORDER BY THE LD. CIT(A) HAS BEEN MADE EX-PA RTE. NEW ADDRESS GIVEN IS AS UNDER:- I.T.A NO. 2571/AHD/2011 A.Y. 2007-08 PAGE NO M/S. HARIHAR SAW MILLS VS. ITO 3 M/S HARIHAR SAW MILLS 4, HIRARAM COMPLEX, SUMAN DESAI NI WADI, KHATODARA, SURAT-395002 LEARNED COUNSEL SUBMITTED THAT IT WILL BE IN VIOLAT ION OF PRINCIPLE OF NATURAL JUSTICE IF SOME DECISION IS MADE WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD, THEREFORE HE PRAYED THAT THE EX-PARTE DECISI ON MADE BY THE LD. CIT(A) BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR FRESH AD JUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD AT THE GIVEN AD DRESS MENTIONED HEREINABOVE. 4. LD. DR ON THE OTHER HAND DID NOT RAISE ANY OBJEC TION IF THE MATTER IS SET ASIDE TO THE FILE OF AO FOR RE-ADJUDICATION AFT ER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE F ACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE H AS NOT RECEIVED THE NOTICE SINCE AS PER THE FINDING OF LD. CIT(A) AT PAGE 2 PA RA 2 THE POSTAL AUTHORITIES HAVE RETURNED THE NOTICE WITH THE REMARK LEFT. THOUGH THERE WAS NO NEW ADDRESS ON RECORD BEFORE LD. CIT(A) IN FORM 35 AVA ILABLE BEFORE HIM BUT THE NEW ADDRESS WHERE THE NOTICE COULD BE RECEIVED WAS MADE AVAILABLE IN FORM 36 BEFORE THIS BENCH. BUT THE FACT REMAINS T HAT THE DECISION BY THE LD. CIT(A) IS EX-PARTE AND THE ASSESSEE HAS NOT OBTAINE D ANY OPPORTUNITY OF BEING HEARD AT THE LEVEL OF LD. CIT(A) BECAUSE ASSE SSEE HAS LEFT THAT PLACE AT THE TIME OF DECISION BY LD. CIT(A). THE ASSESSEE H AS GIVEN THE LATEST ADDRESS BEFORE THIS BENCH. THE REVENUE DOES NOT HA VE ANY OBJECTION IF THE I.T.A NO. 2571/AHD/2011 A.Y. 2007-08 PAGE NO M/S. HARIHAR SAW MILLS VS. ITO 4 MATTER IS SET ASIDE TO THE FILE OF AO FOR RE-ADJUDI CATION AFTER PROVIDING OPPORTUNITY TO ASSESSEE. IN THESE CIRCUMSTANCES AN D FACTS OF THE CASE, IT WILL BE IN THE INTEREST OF JUSTICE IF THE MATTER IS SET ASIDE TO THE FILE OF LD. CIT(A) TO RE-ADJUDICATE THE APPEAL ON MERIT BUT AFTER PROV IDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ORDERED ACCO RDINGLY. THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES I N VIEW OF OUR FINDINGS HEREINABOVE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN OPEN COURT ON 16-09-201 3 SD/- ( B. P. JAIN) ACCOUNTANT MEMBER AHMEDABAD: DATED 16/09/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,