Milind Mohanrao Vadangekar, Pune V. Income-tax Officer, Ward - 3(1), Pune

ITA 2745/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8729 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 22-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Keywords: Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER . / I TA NO. 2745 /PUN/20 17 / ASSESSMENT YEAR : 2013 - 14 MR. MILIND MOHANRAO VADANGEKAR OFFICE NO.17, 2 ND FLOOR, YUGAY MANGAL COMMERCIAL COMPLEX, KOTHRUD, PUNE - 411 038 PAN : AAJPV1540P ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD - 3(1), PUNE. / RESPONDENT A SSESSEE BY : NONE REVENUE BY : SHRI VITTHAL BHOSALE / DATE OF HEARING : 24 . 0 3 .202 1 / DATE OF PRONOUNCEMENT : 24 . 03 .2021 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEAL), PUNE - 3 DATED 22.09.2017 FOR THE ASSESSMENT YEAR 2013 - 14 AS PER THE GROUNDS OF APPEAL ON RECORD. 2 ITA NO. 2745 /PUN/20 17 A.Y. 2013 - 14 2. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE PRESENCE OF THE LD. DR HAS BEEN RECORDED AND HIS SUBMISSIONS ON MERITS ARE CONSIDERED WHILE DISPOSING THIS PRE SENT APPEAL. 3. THAT ON PERUSAL OF THE LD. CIT(APPEAL) S ORDER AT PARA 5 AND 5.1, IT IS CLEARLY EVIDENT THAT SEVERAL OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE. HOWEVER, THE ASSESSEE FAILED TO AVAIL THOSE OPPORTUNITIES. IN SPITE OF REPEATED NOTICES BEIN G SERVED ON THE ASSESSEE, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE OR ANY WRITTEN SUBMISSIONS WERE FILED. THERE ARE ALSO, NO ADJOURNMENT REQUEST FILED BY THE ASSESSEE IN RESPECT OF HEARING BEFORE THE LD. CIT(APPEAL). FOR THE SAKE OF COMPLETEN ESS, PARA S 5 & 5.1 ARE REPRODUCED HEREIN BELOW: 5. NON ATTENDANCE : - I HAVE PERUSED THE MATERIAL ON RECORD. IT IS SEEN THAT THE APPEAL IN THIS CASE WAS FILED ON 18.04.2016 AND NOTICES U/S.250 WERE ISSUED TO THE APPELLANT ON 13.12.2016, 09.02.2017, 29.05.2017 AND 26.07.2017 FOR HEARING ON 03.01.2017, 20.02.2017, 19.06.2017 AND 21.08.2017 RESPECTIVELY. ALL THE ABOVE NOTICES WERE SENT BY RPAD ON THE ADDRESS PROVIDED BY THE APPELLANT IN FORM NO.35, HOWEVER, 2 NOTICES WERE RETURNED BACK BY THE POST OFFIC E WITH THE LEGEND LEFT AND IN CASE OF 2 NOTICES, NEITHER THE ACKNOWLEDGEMENT NOR THE ENVELOPE OF THE NOTICE WAS RECEIVED BACK. 5.1. IT IS THE DUTY OF THE ASSESSEE TO GIVE CORRECT POSTAL ADDRESS FOR CORRESPONDENCE AND INFORM WELL IN ADVANCE THE CHANGE IN ADDRESS, IF ANY. DURING APPELLATE PROCEEDINGS, THE APPELLANT/AR HAS NOT AVAILED THE OPPORTUNITIES OF HEARING GIVEN AS NARRATED ABOVE AND HAS FAILED TO BRING ON RECORD ANY EXPLANATION/SUBMISSION AGAINST THE ASSESSING OFFICERS ACTION. THERE IS A WELL KNOWN DICTUM OF LAW VIGILANTIBUS, NO DORMENTIBUS, JURA SUBVENIUNT WHICH MEANS LAW WILL HELP ONLY THOSE WHO ARE VIGILANT. LAW WILL NOT ASSIST THOSE WHO ARE CARELESS OF HIS/HER RIGHT . I N ORDER TO CLAIM ONES RIGHT , S /HE MUST BE WATCHFUL OF HIS/HER RIGHT. ONLY T HOSE PERSONS , WHO ARE WATCHFUL AND CAREFUL OF USING HIS/HER RIGHTS, ARE ENTITLED TO THE BENEFITS OF LAW. LAW CONFERS RIGHTS ON PERSONS WHO ARE VIGILANT OF THEIR RIGHTS. 4. THEREAFTER, THE LD. CIT(APPEAL) RELIED ON THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER, 118 ITR 461 WHEREIN IT HAS BEEN HELD THAT THE APPEAL DOES NOT MEAN MERE FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. SIMILARLY, THE HONBLE 3 ITA NO. 2745 /PUN/20 17 A.Y. 2013 - 14 PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495 RETURNED THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED ABSENT AND THERE WAS NO ASSISTANCE FROM THE ASSESSEE. THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTAT E OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITR 480 HAS HELD THAT IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAIL S TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. THE LD. CIT(APPEAL), THEREFORE, WAS RESTRAINED AND COMPELLED TO PASS ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. 5. THAT ON PERUSAL OF THE PARA 6.2 & 6.2.1 OF THE LD. CIT(APPEAL)S ORDER, CLEARLY REFLECTS THE FACT THAT THE ASSESSEE HAS NOT PLACED RELEVANT MATERIALS/EVIDENCES BEFORE THE ASSESSING OFFICER. THAT SINCE THE ASSESSEE WAS ALSO NOT PRESENT BEFORE THE LD. CIT(APPEAL), THERE WERE NO SUBSTANTIVE MATERIALS/DOCUMENTS ON MERITS AND RELYING ON THE FINDIN GS OF THE ASSESSING OFFICER, ADDITIONS WERE CONFIRMED BY THE LD. CIT(APPEAL) AND ASSESSEES APPEAL WAS DISMISSED. THEREFORE, IT IS AN EX - PARTE ORDER PASSED BY THE LD. CIT(APPEAL) WHEREIN RIGHTS AND LIABILITIES OF THE ASSESSEE VIS - - VIS DEPARTMENT ARE YET T O BE DETERMINED IN RESPECT OF TAXATION PURPOSES. WE ARE OF THE CONSIDERED VIEW, IN THE INTEREST OF JUSTICE ONE FINAL OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE WHEREIN THE MATTER CAN BE REMANDED BACK TO THE FILE OF THE LD. CIT(APPEAL) AND THE ASSESSEE CAN REPRESENT HIS CASE ON MERITS THROUGH FILING RELEVANT DOCUMENTS/EVIDENCES AND REPRESENT HIS CASE ON MERITS. THE LD. CIT(APPEAL) WOULD RE - ADJUDICATE THE MATTER AS PER LAW WHILE COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 6. THE LD. DR CONCEDED THAT TO ARRIVE AT A PROPER LOGICAL END, THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR PROPER 4 ITA NO. 2745 /PUN/20 17 A.Y. 2013 - 14 REPRESENTATION ON MERITS BY THE ASSESSEE. IN VIEW THEREOF, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEAL) AND REMAND THE MATTER BACK T O HIS FILE FOR RE - ADJUDICATION AS INDICATED HEREINABOVE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 24 TH DAY OF MARCH , 20 2 1 . SD/ - SD/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 24 TH MARCH , 202 1 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL), PUNE - 3 4. THE PR. CIT - 2, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // TRUE COPY // / PRIVATE SECRETARY , / ITAT, PUNE . 5 ITA NO. 2745 /PUN/20 17 A.Y. 2013 - 14 DATE 1 DRAFT DICTATED ON 2 4 . 0 3 .202 1 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 24 . 03 .202 1 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER