Shri Jagdishchandra B. Gandhi, Surat V. The Income tax Officer, Ward-2(4), Surat

ITA 2743/AHD/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67692 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 05-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: M K PATEL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T. R. MEENA, ACCOUNTANT MEMBER ITA NO. 2743/AHD/2009) A.Y: 2005-06 JAGDISHCHANDRA B. GANDHI C/O SUDHIR B . SHAH 5/458, KALJUG STREET, HARIPURA, SURAT PAN: ABZPQ 2554B VS ITO WARD 2(4), SURAT (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P. JHANGID, SR. D.R . ASSESSEE(S) BY : SHRI M. K. PATEL, A.R. DATE OF HEARING : 16/09/ 2013 DATE OF PRONOUNCEMENT : 19/09/2013 O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF LEARNED CIT(A)-II, SURAT, DATED 23.06.2009. THE MAI N GROUND WHICH IS DECIDED AS ALSO PRESSED BEFORE US IS GROUND NO.1 AN D 2, REPRODUCED BELOW : 'THE LEARNED CIT(A)-II, SURAT HAS ERRED IN PASSING EX-PARTE ORDER U/S250 OF THE IT ACT IGNORING THE DIFFICULTIES OF THE APPELLA NT WHO IS NON RESIDENT INDIAN STAYING AT U.S.A., IN SUBMITTING CONNECTED DETAILS, FOR ONLY CRIME ON HIS PART THAT HE HAD NOT SUBMITTED THE DETAILS WITHIN THE TI ME AS DESIRED AND DETERMINED BY THE LEARNED CIT(A) UNILATERALLY, IN S PITE OF REPEATED REQUEST MADE FOR MORE TIME TO FURNISH THE REQUIRED DETAILS. THE LEARNED CIT(A) HAS ERRED IN NOT RESPONDING THE REQUEST AS MADE UNDER RULE 46A(1)(B) AND 46(1)(D) OF THE INCOME TAX RULES BY THE APPELLANT TO FURNISH ADDITIONAL EVIDENCES DURING THE APPELLATE P ROCEEDINGS AND PASSED THE APPELLANT ORDER WITHOUT GIVING HIM AN OPPORTUNITY T O FURNISH THE ADDITIONAL EVIDENCES. ITA NO.2743/AHD/2009 JAGDISH CHANDRA B. GANDHI VS. ITO, SURAT A.Y. 2005-06 - 2 - 2. AT THE OUTSET, LEARNED AR HAS INFORMED THAT THE IMPUGNED ORDER OF LEARNED CIT(A) WAS AN EX-PARTE ORDER. THE ASSESSEE WAS UNABLE TO APPEAR BEFORE THE LEARNED CIT(A) AND THERE WAS A REASONABL E CAUSE OF THE ALLEGED NON-APPEARANCE. LEARNED AR HAS PLEADED THAT IF AN OPPORTUNITY BE GRANTED THEN ON THE BASIS OF THE EVIDENCE THERE IS A HOPE OF SUCCESS. 2.1 BEFORE US, LEARNED AR HAS ALSO PLACED AN ANOTHE R ARGUMENT THAT THE MATTER WAS ALMOST DECIDED TO BE RESTORED BACK BY SE TTING ASIDE THE ORDER OF LEARNED CIT(A) BUT INADVERTENTLY A VIEW WAS TAKE N AGAINST THE ASSESSEE BY ITAT C BENCH IN ITA NO.2743/AHD/2009, A.Y. 2005-06, ORDER DATED 28.2.2012. BUT LATER ON THAT ORDER WAS RECALLED IN M.A. NO.150/AHD/2012 (IN ITA NO.2743/AHD/2009, A.Y. 2005 -06), ORDER DATED 21.2.2013, RELEVANT PARAGRAPH IS AS UNDER: WE HAVE HEARD THE RIVAL SUBMISSION AND CAREFULLY P ERUSED THE MATERIALS ON RECORD. THE SUBMISSIONS OF THE ASSESSEE IS NOT DISP UTABLE SINCE ON VERIFYING OUR LOG BOOK WITH REGARD TO PROCEEDINGS DATED 01.12 .2012 IN RESPECT OF THE ASSESSEES APPEAL WE FIND THAT IT WAS SPECIFICALLY OBSERVED THAT THE ORDER OF LEARNED CIT(A) WAS EX-PARTE AND THEREFORE THE MATTE R REQUIRES TO BE SET ASIDE. WHILE DECIDING THE ORDER THESE NOTING WAS LOST SIGH T OFF AND THE ISSUES IN THE APPEAL WERE DECIDED ON MERITS CONSIDERING THE MATER IALS ON RECORD. SINCE, WE HAD ALREADY DECIDED THE CASE TO BE SET ASIDE IN THE OPEN COURT AS SUBMITTED BY THE ASSESSEE HEREINABOVE, THE DECISION RENDERED BY US IN THE APPEAL IN ITA NO.2743/AHD/2009, DATED 28.02.2012 WILL NOT SURVIVE . THIS IS A CASE WHERE A MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE ORDE R OF THE TRIBUNAL FOR HAVING NOT TAKING NOTE OF THE DECISION RENDERED BY US IN THE OPEN COURT. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN TH E PRAYER OF THE LEARNED D.R. THEREFORE, WE HEREBY RECALL OUR ORDER DATED 28 .02.2012 AND DIRECT THE REGISTRY TO POST THE APPEAL IN REGULAR COURSE AND I NTIMATE BOTH THE PARTIES. 3. WE HAVE HEARD BOTH THE SIDES. FROM THE SIDE OF T HE REVENUE, LEARNED SR.D.R. MR. J.P. JHANGID HAS OBJECTED THE S UGGESTION OF LEARNED AR, PRIMARILY ON THE GROUND THAT FIRST APPELLATE AU THORITY HAD GRANTED SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, THE ASSESSEE DOES NOT DESERVE A SECOND CHANCE OF HEARING. HOWEVER, WE ARE NOT IN AGREEMENT ITA NO.2743/AHD/2009 JAGDISH CHANDRA B. GANDHI VS. ITO, SURAT A.Y. 2005-06 - 3 - WITH THE ARGUMENT OF LEARNED DR. RATHER, WE ARE OF THE VIEW THAT ONCE A DECISION WAS TAKEN BY A BENCH TO RESTORE THE MATTER FOR RE-ADJUDICATION AND THAT FACT WAS AFFIRMED SUBSEQUENTLY IN ONE MA, ORDER DATED 21.2.2013 (SUPRA), RELEVANT PORTION REPRODUCED ABOV E, THEN NOTHING MORE IS LEFT FOR US TO TAKE ANY ADVERSE VIEW BUT TO GIVE DUE RESPECT TO THE OBSERVATION OF THE BENCH. THEREFORE, THIS MATTER AS ALSO THE GROUNDS RAISED HAS TO BE RESTORED BACK FOR RE-ADJUDICATION AFRESH. NOW, THE QUESTION IS THAT WHETHER LEARNED CIT(A) CAN CONVENI ENTLY PROCEED WITH THE MATTER, BUT CONSIDERING THE ARGUMENT OF LEARNED AR THAT CERTAIN EVIDENCES HAVE NOT BEEN ENTERTAINED BY LEARNED CIT( A) BECAUSE OF THE APPLICABILITY OF THE PROVISIONS OF RULE 46A OF IT A CT, THEREFORE, WE DEEM IT PROPER TO RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE AO SO THAT THE NEW EVIDENCES CAN PROPERLY BE INVESTIGATED BY THE A O AS PER LAW. 3.1 WE HEREBY DIRECT THE APPELLANT TO CO-OPERATE WI TH THE ASSESSMENT PROCEEDINGS. HE SHALL NOT TAKE ANY FRIVOLOUS ADJOUR NMENT AND GET THE ASSESSMENT FINALIZED AS EARLY AS POSSIBLE BY FILING ALL THE EVIDENCES ON THE DATE OF HEARING. WE THINK THAT IT IS ESSENTIAL TO D IRECT THIS ASSESSEE TO BE PRESENT PERSONALLY OR THROUGH HIS COUNSEL BEFORE TH E AO WITHIN 30 DAYS FROM THE DATE OF THE RECEIPT OF THIS ORDER AND PLAC E ALL THE EVIDENCES BEFORE THE AO WITHOUT WATCHING FOR ANY FORMAL NOTIC E OF HEARING. THE AO IS OTHERWISE AT LIBERTY TO TAKE ALL LEGAL STEPS FOR THE PURPOSE OF COMPLETION OF ASSESSMENT. WITH THESE DIRECTIONS, TH E MATTER IS RESTORED BACK TO THE FILE OF THE AO FOR WHICH THE LEARNED AR HAS GIVEN HIS CONSENT AS WELL, HENCE, THE GROUNDS AS ALSO THE APPEAL MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. ITA NO.2743/AHD/2009 JAGDISH CHANDRA B. GANDHI VS. ITO, SURAT A.Y. 2005-06 - 4 - 4. IN CONSEQUENCE, REST OF THE GROUNDS ARE ALSO TO BE DECIDED ON MERITS AFRESH BY THE AO AS PER LAW. RESULTANTLY, TH IS APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWA T) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/09/2013 PRABHAT KR. KESARWANI, SR.P.S. TRUE COPY COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A)-III, AHMEDABAD 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, (DY./ASSTT.REGISTRAR) ITAT, AHMEDABAD