Shri Poojan Kinnerkumar Patel, Ahmedabad V. The ACIT.,Circle-10, Ahmedabad

ITA 2989/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89612 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Principle of natural justice; Competent authority
• Section: 234B

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ./ ITA NO.2989/AHD/2011 / ASSESSMENT YEAR: 2008-2009 SHRI POOJAN KINNERKUMAR PATEL 4, JALDARSHAN OPP: NATRAJ CINEMA ASHRAM ROAD AHMEDABAD 380 009. VS ACIT, CIR.10 AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE(S) BY : SHRI M.K. PATEL REVENUE BY : SHRI D INESH SINGH, SR.DR / DATE OF HEARING : 15/06/2015 / DATE OF PRONOUNCEMENT: 19/06/2015 $%/ O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A)-XVI, AHMEDABAD DATED 22.9.2011. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1) THAT ON FACTS AND IN LAW THE LEARNED CIT (A) HA S GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX-PARTE, W ITHOUT PROVIDING SUFFICIENT OPPORTUNITY TO APPELLANT. 2) THAT ON FACTS AND IN LAW, THE LEARNED CIT (A) OU GHT TO HAVE DECIDED THE APPEAL ON MERITS INSTEAD OF DISMIS SING THE APPEAL FOR NON-ATTENDANCE. ITA NO.2989/AHD/2011 2 3) THAT ON FACTS IN LAW, THE LEARNED CIT (A) HAS GR IEVOUSLY ERRED IN LAW AND ON FACTS IN MAKING DISALLOWANCE OF CLAIM OF BAD DEBT/TRADING LOSS OF RS.4,66,444/-. 4) THAT, IN THE ALTERNATE AND WITHOUT PREJUDICE TO GROUND NO. (1) ABOVE APPROPRIATE RELIEF OUGHT TO HAVE BEEN GIVEN IN THE APPROPRIATE ASSESSMENT YEAR AS STATED ON PAGE 5 OF THE ORDER UNDER APPEAL. 5) THAT THE LEARNED CIT (A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN DISALLOWING THE PAYMENT OF RS.3,60, 122/- BY INCORRECTLY HOLDING THAT IT IS NOT ALLOWABLE UNDER SECTION 36(1) (II) OF THE ACT. (6) THAT THE LEARNED CIT (A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN DISALLOWING THE PROPORTIONATE EXPENDITU RE OF RS. 4,80,000/- BY INCORRECTLY INVOKING THE PROVISIONS O F SECTION 194-I READ WITH SECTION 40 (A) (IA) OF THE ACT. (7) THAT THE LEARNED CIT (A) HAS GRIEVOUSLY ERRED IN CHARGING INTEREST UNDER SECTION 234B AND 234C OF THE INCOME-TAX ACT, 1961. (8) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AM END ANY GROUND OF APPEAL. 3. THE AR OF THE ASSESSEE SUBMITTED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THE AP PEAL WAS FIXED FOR HEARING ON 1.8.2011. THE SAME WAS ADJOURNED TO 12.8.2011 AT THE REQUEST OF THE ASSESSEE. AGAIN ON 12.8.2011 , THE CASE WAS ADJOURNED TO 29.8.2011 AT THE REQUEST OF THE ASSESS EE. AGAIN ON 29.8.2011, AT THE REQUEST OF THE ASSESSEE THE CASE WAS ADJOURNED TO 22.9.2011. ON 22.9.2011. THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A) AND NO ADJOURNMENT APPLICATION WAS FILED . THEREFORE, CIT(A) OBSERVED THAT THE AO HAD MADE THE ADDITION A FTER CONSIDERING THE SUBMISSION OF THE ASSESSEE MADE BEF ORE HIM, AND SINCE THE ASSESSEE HAD NOT TURNED UP, THEREFORE, HE HAD NO REASON ITA NO.2989/AHD/2011 3 TO INTERFERE WITH THE FINDINGS OF THE AO. THE AR O F THE ASSESSEE SUBMITTED THAT IT IS A FACT THAT THE ASSESSEE FAILE D TO APPEAR BEFORE THE CIT(A) ON 22.9.2011, AS THERE WAS ILLNESS IN TH E FAMILY. HE SUBMITTED THAT EVEN IF THE ASSESSEE FAILED TO APPEA R ON THE DATE OF HEARING, IT WAS INCUMBENT UPON THE CIT(A) TO DISPOS E OF THE APPEAL ON MERITS. IT WAS THEREFORE, PRAYED THAT T HE MATTER SHOULD BE RESTORED TO THE FILE OF THE CIT(A) FOR DI SPOSING OF THE APPEAL ON MERITS. HE ALSO PLACED RELIANCE O THE DE CISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF GUJAR AT THEMIS BIOSYN LTD. VS. JCIT, 74 ITD 339 (AHD) WHEREIN IT WA S HELD AS UNDER: THE PROVISIONS OF SECTION 250(6) PROVIDES THAT THE APPELLATE ORDERS OF THE COMMISSIONER (APPEALS) ARE TO STATE T HE POINTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORIT Y THEREON AND THE REASONS FOR SUCH DECISION. THE UNDERLYING R ATIONALE OF THE PROVISION IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE TRIBUNAL. SPEAKING ORDER WOULD OBVIOU SLY ENABLE A PARTY TO KNOW PRECISE POINTS DECIDED IN HI S FAVOUR OR AGAINST HIM. ABSENCE OF THE FORMULATION OF THE POINT FOR DECISION FOR WANT OF CLARITY IN A DECISION UNDOUBTE DLY PUTS A PARTY IN QUANDARY. SECTION 250(6) EXPRESSLY EMBODIE S PRINCIPLES OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUGNED ORDER PASSED BY T HE COMMISSIONER (APPEALS) IN DON OF THE PROVISIONS OF SECTION 250(6) COULD NOT, THEREFORE, BE SUSTAINED. THE COMMISSIONER (APPEALS) SHOULD, ACCORDINGLY DISP OSE OF THE ASSESSESS APPEAL AFRESH. 4. ON THE OTHER HAND, THE DR OPPOSED THE SETTING AS IDE OF THE MATTER TO THE FILE OF THE CIT(A) FOR DISPOSAL OF AP PEAL ON MERITS ON THE GROUND THAT SUFFICIENT OPPORTUNITY WAS ALLOWED TO THE ASSESSEE AND THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A) AND FILE RELEVANT DOCUMENTS AND DETAILS IN SUPPORT OF ITS CA SE. ITA NO.2989/AHD/2011 4 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE APPE AL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE FAILED TO APPEAR BEFORE HIM ON 22.9.2011 A ND NO ADJOURNMENT APPLICATION WAS FILED. IN OUR CONSIDER ED VIEW, EVEN IF THE ASSESSEE FAILED TO PUT-IN APPEARANCE, IT IS THE DUTY OF THE CIT(A) TO DISPOSE OF THE APPEAL ON MERIT ON THE BAS IS OF MATERIAL AVAILABLE ON RECORD. OUR VIEW FINDS SUPPORT FROM T HE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF VODAFON E ESSAR LTD VS. DISPUTE RESOLUTION PANELII & ORS. IN W.P.(C) 702 8/2010 ORDER DATED 02.12.2010 WHEREIN IT HAS HELD AS UNDER : HEARD MR. SYALI, LEARNED SENIOR COUNSEL FOR THE PE TITIONER AND MR. SANJEEV SABHRAWAL, LEARNED STANDING COUNSEL FOR THE REVENUE. BY THIS WRIT PETITION, THE PETITIONER HAS PRAYED FO R ISSUE OF A WRIT OF CERTIORARI FOR QUASHMENT OF THE ORDER DATED 30 TH SEPTEMBER 2010 PASSED BY THE DISPUTE RESOLUTION PANEL II, THE FIRST RESP ONDENT HEREIN. WHAT COULD HAVE BEEN A MATTER OF DEBATE WAS PUT TO REST BY MR. SANJEEV SABHRAWAL, LEARNED COUNSEL FOR THE REVENUE BY STATI NG THAT THE ORDER PASSED ON 30 TH SEPTEMBER 2010, CONTAINED IN ANNEXURE P1 DESERVE S TO BE QUASHED AND THE MATTER BE REMANDED TO THE SAI D AUTHORITY FOR FRESH ADJUDICATION. IN VIEW OF THE AFORESAID FAIR CONCESSION, THE ORDER DATED 30 TH SEPTEMBER 2010 PASSED BY RESPONDENT NO. 1 IS QUASHED AND THE MATTER IS REMANDED TO THE SAID RESPONDENT TO ADJUDICATE AFRES H. BE IT NOTED, WHEN A QUASI JUDICIAL AUTHORITY DEALS WITH A LIS, I T IS OBLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE REASONS AS THE S AME IS THE HEART AND SOUL OF THE MATTER. AND FURTHER, THE SAME ALSO FACILITATES APPRECIATION WHEN THE ORDER IS CALLED IN QUESTION B EFORE THE SUPERIOR FORUM. NEEDLESS TO SAY THAT THE COMPETENT AUTHORITY , WHILE PASSING THE ORDER, SHALL KEEP IN MIND THE ORDER DATED 29 TH NOVEMBER 2010 WHEREIN WE HAD DIRECTED THAT THE PERIOD FROM THE DATE OF FI LING THE WRIT PETITION AND FOUR WEEKS AFTER ITS DISPOSAL SHALL STAND EXCLU DED, WHILE COMPUTING THE LIMITATION FOR THE DEPARTMENT TO PASS AN ASSESS MENT ORDER. THE WRIT PETITION IS ALLOWED TO THE EXTENT INDICATE D ABOVE WITHOUT ANY ORDER AS TO COSTS. HENCE, WE ASIDE THE ORDER OF THE CIT(A), AND RESTOR E THE MATTER BACK TO THE FILE OF THE ASSESSEE TO DECIDE THE APPE AL ON MERITS. ITA NO.2989/AHD/2011 5 THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CIT(A ) ON THE DATE OF HEARING FIXED AND FILE ALL THE DETAILS AND EVIDE NCES, ON WHICH IT WISHES RELY UPON AND FULLY COOPERATE WITH THE CIT(A ) IN DISPOSING OF THE APPEAL EXPEDITIOUSLY. WITH DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 19 TH JUNE, 2015 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 19/06/2015 $% & ''() *$)' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A)-III 5. $%& '' , / DR, ITAT, 6. &)* + / GUARD FILE. $% + / BY ORDER, ,/ - ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD