Shri Jigar Navinkumar Shah, Ahmedabad V. The ITO, Ward-2(2)(3), Ahmedabad

ITA 277/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6301 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L THAKKAR
• Keywords: Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO. 277/AHD/2019 ( ASSESSMENT YEAR : 2014-15) SHRI JIGAR NAVINKUMAR SHAH 4, SANSKARBHARTI CO.OP. SOCIETY, NR. JAIN DERASAR, ANKUR ROAD, AHMEDABAD - 380013 / VS. THE INCOME TAX OFFICER WARD 2(2)(3), AHMEDABAD ./ ./ PAN/GIR NO. : BFZPS2009N ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI A. L. THAKKAR, A.R. / RESPONDENT BY : SHRI VIDHYUT TRIVEDI, SR. D.R. DATE OF HEARING 18/10/2019 / DATE OF PRONOUNCEMENT 23/10/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-10, AHMEDABAD (CIT(A) IN SHORT), DATED 14.12.2018 ARI SING IN THE ASSESSMENT ORDER DATED 16.12.2016 PASSED BY THE ASSESSING OFFI CER (AO) UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCER NING AY. 2014-15. 2. THE MATTER WAS ORIGINALLY FIXED FOR EARLY HEARIN G AS PER THE APPLICATION OF THE ASSESSEE DATED 01.10.2019 IN THE REGISTRY. THE MATTER WAS LISTED FOR EARLY HEARING AND CONSIDERING THE GR OUNDS RAISED BY THE ITA NO. 277/AHD/19 [SHRI JIGAR N. SHAH VS. ITO] A.Y. 2014-15 - 2 - ASSESSEE, IT WAS CONSIDERED EXPEDIENT TO ADJUDICATE THE APPEAL AT THIS STAGE ITSELF. 3. THE LEARNED AR FOR THE ASSESSEE ADVERTED OUR ATT ENTION TO PARA NO.4 OF THE ORDER OF THE CIT(A) SHOWING A TABULATED STAT EMENT WHEREBY AN IMPRESSION WAS GIVEN THAT THE ASSESSEE HAS FAILED T O COMPLY WITH THE NOTICES ISSUED BY THE FIRST APPELLATE AUTHORITY. T HE CIT(A) ACCORDINGLY DECIDED THE ORDER EX PARTE OWING TO ALLEGED NON-COMPLIANCE OF THE NOTICE OF HEARING. IN THIS CONTEXT, THE LEARNED AR FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSEE HAS DULY ATTENDED BEFORE THE AO AND TH EREFORE THERE WAS NO REASON FOR HIM TO NOT ATTEND BEFORE THE FIRST APPEL LATE AUTHORITY FOR REDRESSAL OF GRIEVANCES. THE LEARNED AR FOR THE AS SESSEE POINTED OUT THAT IT WAS AS PER THE ORAL DIRECTION OF CIT(A), THE ASSESS EE MOVED ADJOURNMENT APPLICATION AGAIN AND AGAIN AND AFRESH DATE WAS GIV EN PURSUANT TO SUCH REQUESTS. THE LAST APPLICATION FOR ADJOURNMENT WAS MADE ON 12.12.2018 AND THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE EX PARTE ABRUPTLY. THE LEARNED AR ACCORDINGLY SUBMITTED THAT SUCH EX PARTE ORDER REITERATING THE OBSERVATIONS OF THE AO IS A FUTILE EXERCISE AND HAS CAUSED SERIOUS PREJUDICE TO THE ASSESSEE IN VIOLATION OF PRINCIPLE S OF NATURAL JUSTICE. THE LEARNED AR POINTED OUT THAT VARIOUS DECISIONS SOUGH T TO BE RELIED UPON BY THE CIT(A) ARE CLEARLY DISTINGUISHABLE ON FACTS AS THE ASSESSEE CANNOT BE REGARDED AS NON-COMPLIANT ON THE PERSON. THE ASSES SEE HAS DULY APPEARED IN THE ASSESSMENT PROCEEDINGS BEFORE THE AO AND HAS ALSO RESPONDED TO THE HEARING DATES BEFORE THE CIT(A) ALBEIT IN THE SHAPE OF ADJOURNMENT LETTER FOR THE REASONS NARRATED ABOVE. THE LEARNED AR ACC ORDINGLY SUBMITTED THAT A BENIGN VIEW BE TAKEN IN THE CIRCUMSTANCES AND EX PARTE ORDER OF THE CIT(A) BE SET ASIDE AND BE RESTORED BACK TO THE FIL E OF CIT(A) FOR DE NOVO ADJUDICATION ON MERITS UNINFLUENCED BY OBSERVATIONS MADE IN EX PARTE PROCEEDINGS. 4. THE LEARNED DR FOR THE REVENUE, ON THE OTHER HAN D, RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED THAT AMPLE OPPORT UNITIES WERE GIVEN TO THE ASSESSEE, WHICH WERE NOT AVAILED LEAVING NO REC OURSE WITH THE CIT(A) BUT TO COMPLETE THE PROCEEDINGS BEFORE HIM EX PARTE. ITA NO. 277/AHD/19 [SHRI JIGAR N. SHAH VS. ITO] A.Y. 2014-15 - 3 - 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. WE NOTICE THAT ASSESSEE HAS DULY APPEARED IN THE ASSESSMENT PROCEE DINGS BEFORE AO BUT HOWEVER THE NOTICE OF HEARING BEFORE THE CIT(A) HAS REMAINED UNCOMPLIED. THE CIT(A) HAS DISPOSED OF THE APPEAL OF THE ASSESS EE RELYING ON THE OBSERVATIONS OF THE AO WITHOUT ANY INDEPENDENT INQU IRY INTO THE FACTS IN THE ABSENCE OF ASSISTANCE FROM THE ASSESSEE. LOOKI NG AT THE TOTALITY OF CIRCUMSTANCES, WE FIND SUBSTANCE IN THE PLEA ON BEH ALF OF THE ASSESSEE TOWARDS VIOLATION OF NATURAL JUSTICE. IN THE ABSEN CE OF THE ASSESSEE, IT IS NATURALLY DIFFICULT FOR THE FIRST APPELLATE AUTHORI TY TO COMPREHEND THE NUANCES OF THE ISSUES INVOLVED. THE ASSISTANCE FRO M THE ASSESSEE WOULD, WITHOUT DOUBT, BRING THE MEASURE OF INTELLECT IN TH E DECISION MAKING. WE ARE THUS INCLINED TO SET ASIDE THE EX PARTE ORDER OF THE CIT(A) PASSED IN A SUMMARY MANNER AND WHICH LACKS OF OBJECTIVITY, TO P REVENT MISCARRIAGE OF JUSTICE. THE APPEAL IS ACCORDINGLY RESTORED TO THE FILE OF THE CIT(A). ALL ISSUES ARE KEPT OPEN WITHOUT FETTERS FOR CONSIDERAT ION OF THE CIT(A). THE CIT(A) SHALL PASS ORDER IN ACCORDANCE WITH LAW AFTE R GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE SHALL FU LLY COOPERATE IN THE PROCEEDINGS BEFORE THE CIT(A) WITHOUT ANY DEMUR. S UBJECT TO ABOVE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS RESTORED TO THE FILE OF THE CIT(A) FOR DE NOVO ADJUDICATION. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (RAJPAL YADAV) (PRADIP KU MAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBE AHMEDABAD: DATED 23/10/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+4 56) / THIS ORDER PRONOUNCED IN OPEN COURT ON 23/10/201 9 ITA NO. 277/AHD/19 [SHRI JIGAR N. SHAH VS. ITO] A.Y. 2014-15 - 4 - DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+4 56)