M/s. Gopinath Construction, Baroda V. The Income Tax Officer, Ward 5(3), Baroda

ITA 2857/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8891 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: CHANDRESH I SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO. 2857/AHD/2013 / ASSESSMENT YEAR : 2009-10 M/S. GOPINATH CONSTRUCTION, C/O. GHANSHYAM I PANDYA, 26, SARVODAY SOCIETY, NIZAMPURA, VADODARA-390002 PAN: AADFQ 6035 C VS THE INCOME-TAX OFFICER, WARD 5 (3), BARODA / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI CHANDRESH I. SHAH, AR REVENUE BY : SHRI OM PRAKASH MEENA, SR DR / DATE OF HEARING : 23/01/2017 / DATE OF PRONOUNCEMENT: 20/03/2017 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-V, BARODA DATE D 26.08.2013, PASSED FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V HAS ERRED IN CONFIRMING THE STAND TAKEN BY THE LEARNED ASSESSING OFFICER OF MAKING THE ADDITION TO THE DECLARED RETURNED INCOME, THE S UM OF RS.11,88,505/- ON ADHOC BASIS, WHEN THE ASSESSEE HAS, IN FACT, HAD BOOKS OF ACCOUNTS AUDITED AND PROFIT SHOWN WAS RS.8,77,979/- AND NOT SHOWN BY ASSESSING OFFICER AT RS.1,15,793/- 2. THE LEARNED COMMISSIONER (APPEALS) WAS NOT JUSTIFIE D IN MAKING OF THE EX-PARTE ORDER AND CONFIRMING THE ADDITION MADE BY ASSESSING OFFICER ITA NO. 2857/AHD/2013 GOPINATH CONSTRUCTION VS. ITO AY : 2009-10 2 WITHOUT TAKING INTO ACCOUNT THE PROFIT AND LOSS ACC OUNT AND THE AUDIT REPORT. THUS, THE COMMISSIONERS ORDER IS TOTALLY VIOLATIVE OF THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDS THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE AT ALL BEFORE THE FIRST APPELLATE AUTHORITY AS HE WAS UNDER TRIAL AND JUDICIAL CUSTOD Y DURING APPELLATE PROCEEDINGS BEFORE LD. CIT(A). TO SUPPORT THIS CLA IM, A COPY OF FIRST INFORMATION REPORT AND ORDER OF HONBLE GUJARAT HIG H COURT ARE PLACED ON RECORD. HE THUS PLEADED THAT THE EX-PARTE ORDER MA Y BE SET ASIDE AND MATTER MAY BE REMITTED BACK TO THE TO THE FILE OF LD. CIT( A) FOR FRESH ADJUDICATION. 4. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIES UPON THE ORDERS OF THE AUTHORITIES BELOW BUT IN ALL FAIRNESS , HE SUBMITS THAT HE HAS NO OBJECT ION IF THE MATTER IS RESTORED TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. IT IS NOTICED THAT THE ASSESSEE COULD NOT ABLE TO PRESENT HIMSELF BEFORE THE LD. CIT(A) DURING THE APPELLATE PROCEEDINGS AS HE WAS U NDER TRIAL AND UNDER JUDICIAL CUSTODY ON ACCOUNT OF SOME CRIMINAL OFFENC E, WHICH IS EVIDENT FROM THE COPY OF FIR AND ORDER OF HONBLE HIGH COURT PLA CED ON RECORD. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE A SSESSEE WAS PREVENTED BY REASONABLE CAUSE FOR NOT APPEARING BEFORE THE LD. C IT(A) AND THEREFORE, IN THE INTERESTS OF JUSTICE, WE CONSIDER IT FAIR AND R EASONABLE THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) AND AC CORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) TO HIS FILE TO DECID E THE APPEAL OF THE ASSESSEE ITA NO. 2857/AHD/2013 GOPINATH CONSTRUCTION VS. ITO AY : 2009-10 3 AFRESH, IN ACCORDANCE WITH LAW, AFTER PROVIDING REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 20 TH MARCH, 2017 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) MAHAVIR PRASAD (JUDICIAL MEMBER) AHMEDABAD; DATED 20/03/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD