Shri Sugnesh Harshvadan Shah, Ahmedabad V. The ITO, Ward-5(2)(4), Ahmedabad

ITA 260/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9280 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LK JAIN
• Assessee Lawyers: A L THAKKAR
• Keywords: Assessment record; Set aside
• Section: 250; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, HONBLE VICE-PRESIDENT AND SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER ITA NO. 260/AHD/2019 ASSESSMENT YEAR : 2015-16 SHRI SUGNESH HARSHVADAN SHAH, 201, NIRJA FLATS, MITHAKHALI SIX ROADS, NAVRANGPURA, AHMEDABAD-380009 PAN : ANKPS 8508 C V/S . THE INCOME TAX OFFICER, WARD 2(2)(3), AHMEDABAD / ( APPELLANT) .. / (RESPONDENT) ASSESSEE BY : SHRI AL THAKKAR, AR REVENUE BY : SHRI LK JAIN, SR DR / DATE OF HEARING : 14/06/2019 /DATE OF PRONOUNCEMENT : 08/07/2019 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAIN ST THE ORDER OF LEARNED CIT(A)-5, AHMEDABAD DATED 28.12.2018 PASSED FOR ASS ESSMENT YEAR 2015-16. THE ASSESSEE HAS FILED AN APPLICATION FOR EARLY HEA RING OF THE APPEAL. DURING THE COURSE OF HEARING OF APPLICATION FOR EARLY HEARING, IT CAME TO OUR NOTICE THAT THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A) IS AN EX-PARTE ORDER WHEREBY LEARNED FIRST APPELLATE AUTHORITY HAS JUST CONCURRE D WITH THE STAND OF ASSESSING OFFICER WITHOUT FOLLOWING THE PROCEDURES CONTEMPLAT ED UNDER SUB-SECTION (6) OF SECTION 250 OF THE INCOME-TAX ACT, 1961. THEREFORE , WE PUT IT TO THE PARTIES AS TO WHY THE APPEAL ITSELF BE NOT TAKEN UP FOR HEARING. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT OBJECT TO THIS AND, ACCORDIN GLY, WE PROCEED TO DECIDE THE APPEAL ITSELF. 2. WITH THE ASSISTANCE OF THE LEARNED REPRESENTATIV ES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECO RD THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 29.08.2015 DECLARING TOTAL INCO ME AT RS.8,42,370/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T AND NOTICE UNDER SECTION I TA NO. 260/AHD/2019 SHRI SUGNESH HARSHVADAN SHAH VS. ITO AY : 2015- 16 - 2 - 143(2) OF THE ACT WAS ISSUED ON 29.07.2016 WHICH WA S DULY SERVED UPON THE ASSESSEE. THE LEARNED ASSESSING OFFICER HAS OBSERV ED THAT, IN RESPONSE TO THE NOTICES ISSUED, SHRI PIYUSH AGARWAL, CA/THE AUTHORI ZED REPRESENTATIVE OF THE ASSESSEE HAS ATTENDED ON BEHALF OF THE ASSESSEE FRO M TIME TO TIME AND FURNISHED THE DETAILS AND DOCUMENTS, WHICH LEARNED ASSESSING OFFICER HAS VERIFIED AND PLACED ON RECORD. THEREAFTER, LEARNED ASSESSING OFF ICER HAS REJECTED THE BOOK RESULTS AND PASSED THE ASSESSMENT ORDER UNDER SECTI ON 144 OF THE ACT ACCORDING TO HIS BEST JUDGMENT. HE DETERMINED THE TAXABLE IN COME OF THE ASSESSEE AT RS.55,35,020/-. HE HAS MADE AN ADDITION OF RS.46,9 2,651/-. 3. DISSATISFIED WITH THE ASSESSMENT ORDER, THE ASSE SSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED FIRST APPELLATE AUTHORITY . A PERUSAL OF PARAGRAPH NO.4 OF THE IMPUGNED ORDER WOULD INDICATE THAT LEARNED F IRST APPELLATE AUTHORITY HAS LISTED THE APPEAL ON EIGHT OCCASIONS; AND OUT OF TH ESE, IT APPEARS THAT, ON FIRST THREE OCCASIONS, EVEN A NOTICE WAS NOT SERVED UPON THE ASSESSEE. ON THE REMAINING DATES, THE ASSESSEE HAS FILED APPLICATION S FOR ADJOURNMENT WHICH WERE ALLOWED. ACCORDING TO THE ASSESSEE, HE HAS FILED A N APPLICATION ON 18.12.2018, HOWEVER, THIS APPLICATION WAS NOT REJECTED BUT LEAR NED CIT(A) CONCLUDED THE HEARING AND PASSED AN EX-PARTE ORDER ON 28.12.2018. 4. ON DUE CONSIDERATION OF THE ABOVE DETAILS, WE AR E OF THE VIEW THAT THE IMPUGNED ORDER IS NOT SUSTAINABLE FOR THE FOLLOWING REASONS NAMELY:- A) SUB-CLAUSE (6) OF SECTION 250 CONTEMPLATES THAT LEA RNED CIT(A) WOULD STATE THE POINTS IN DISPUTE AND THEREAFTER RECORD REASONS IN SUPPORT OF HIS CONCLUSION ON THOSE POINTS. A PERUSAL OF THE ORDER WOULD INDICATE THAT LEARNED CIT(A), THOUGH REPRODUCED THE GROUNDS AND F INDINGS OF THE ASSESSING OFFICER, FAILED TO ANALYZE THE DETAILS SU BMITTED BY THE ASSESSEE AND THE DETAILS AVAILABLE IN THE ASSESSMENT RECORD. ON ALL THE ISSUES, ALMOST SIMILAR FINDING IS BEING RECORDED. B) THE ASSESSEE HAS FILED AN APPLICATION FOR ADJOURNME NT THAT HAS NOT BEEN SPECIFICALLY REJECTED AND INTIMATED TO THE ASSESSEE . C) EVEN FOR THE SAKE OF ARGUMENTS, IT IS ASSUMED THAT THERE WAS A LITTLE NEGLIGENCE ON THE PART OF THE ASSESSEE IN CONDUCTIN G HIS APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THEN THE PUNISHMENT IN T HE SHAPE OF TAX LIABILITY ON THE ADDITION OF RS.46,92,651/- IS DISPROPORTIONA TE TO THE NEGLIGENCE. I TA NO. 260/AHD/2019 SHRI SUGNESH HARSHVADAN SHAH VS. ITO AY : 2015- 16 - 3 - THEREFORE, IN THE INTERESTS OF JUSTICE, WE DEEM IT PROPER TO GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBMIT DETAILS IN SU PPORT OF HIS CONTENTIONS. 5. IN VIEW OF THE ABOVE DISCUSSIONS, WE ALLOW THIS APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF THE LEARNED CIT(A). WE REST ORE ALL THE ISSUES RAISED BY THE ASSESSEE TO THE FILE OF THE LEARNED CIT(A) FOR FRES H ADJUDICATION. THE ASSESSEE WILL BE AT LIBERTY TO FILE THE NECESSARY DETAILS IN SUPP ORT OF HIS DEFENSE. IT IS NEEDLESS TO SAY THAT THE OBSERVATIONS MADE BY US WILL NOT IM PAIR OR INJURE THE CASE OF THE REVENUE AND WILL NOT CAUSE ANY PREJUDICE TO THE DEF ENSE OR EXPLANATIONS OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 8 TH JULY, 2019 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) VICE PRESIDENT (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD, DATED 08/07/2019 *BT. / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. ' / CONCERNED CIT 4. ' ( ) / THE CIT(A) 5. * $-- , , / DR, ITAT, AHMEDABAD 6. 0 / GUARD FILE. / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) ! ', / ITAT, AHMEDABAD 1. DATE OF DICTATION- 05.07.2019 3 PAGES DICTATION PA D ATTACHED 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.07.2019.. OTHER MEMBER 05.07.2019 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.-. 08.07.2019 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT . 08.07.2019. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 08. 07.2019. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORD 8. DATE OF DESPATCH OF THE ORDER