M/s. H.M. Associates, Anand V. The Income tax Officer, Ward-1, Anand

ITA 301/AHD/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1868 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-12-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 17-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Assessee Lawyers: M G PATEL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI T. K. SHARMA, J.M. AND D.C. AGRAWAL, A.M. M/S H. M. ASSOCIATES, C/O KK3, STATION ROAD, OPP. BANK OF BARODA, STATION ROAD, ANAND. V/S . INCOME-TAX OFFICER, WD-2, ANAND. PAN NO.AACFH5652 D (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M. G. PATEL, AR RESPONDENT BY:- SHRI RAJEEV AGARWAL, CIT, SR. DR O R D E R PER T.K. SHARMA, JUDICIAL MEMBER. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D T.11.11.2005 OF CIT(A), BARODA FOR ASSESSMENT YEAR 2001-02. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AS UNDE R :- LD. CIT(A) HAS ERRED IN LAW AND INJUSTICE IN DISMI SSING THE APPEAL WHICH WAS FILED ON 25/1/2005 FOR WHICH FIRST NOTICE OF HEARING WAS FIXED ON 14/3/2005 WITH FINAL NOTICE ON 13/12/2005 AND THEREBY WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING H EARD AND DECIDED THE APPEAL WITHOUT HEARING. ITA NO.301/AHD/2007 ASST. YEAR:2001-02 2 3. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE SHR I M. G. PATEL, LD. AUTHORISED REPRESENTATIVE APPEARED AND CONTENDED TH AT NOTICE OF OF HEARING SENT BY LD. CIT(A) WAS NOT RECEIVED BY THE ASSESSEE BECAUSE THE ASSESSEE FIRM WAS CLOSED AND THE ADDRESS WAS CHANGE D TO C/O KK3, STATION ROAD, OPP. BANK OF BARODA, ANAND.THE LD. AU THORISED REPRESENTATIVE FOR THE ASSESSEE FAIRLY SUBMITTED TH AT THROUGH OVERSIGHT INTIMATION OF CHANGE OF ADDRESS WAS NOT GIVEN TO LD . CIT(A), BARODA. IN THESE CIRCUMSTANCES, LD. CIT(A) DISMISSED THE APPEA L OF THE ASSESSEE HOLDING THAT ASSESSEE IS NOT INTERESTED IN DISPOSAL OF HIS APPEAL. THE LD. AUTHORISED REPRESENTATIVE ALSO SUBMITTED THAT AS PE R PROVISIONS CONTAINED IN S.250(6) OF THE IT ACT, EVEN IN AN EX PARTY ORDE R, IT WAS THE DUTY OF THE LD. CIT(A) TO STATE THE POINTS ARISING IN THE APPEA L, THE DECISION OF THE AUTHORITY THEREON AND THE REASONS FOR SUCH DECISION . THE LD. CIT(A) WAS REQUIRED TO PASS A SPEAKING ORDER AS HELD UNDER BY ITAT AHMEDABAD BENCHC IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS. JT. COMMISSIONER OF INCOME-TAX (2000) 74 ITD 339 :- THE PROVISIONS OF SECTION 250(6) PROVIDES THAT THE APPELLATE ORDERS OF THE COMMISSIONER (APPEALS) ARE TO STATE THE POINTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND THE REASO NS FOR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PROVISION IS THAT S UCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE TRIBUNAL. SPEAKING ORDER W OULD OBVIOUSLY ENABLE A PARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOU R OR AGAINST HIM. ABSENCE OF THE FORMULATION OF THE POINT FOR DECISIO N FOR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PARTY IN QUANDARY. SE CTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLES OF NATURAL JUSTIC E AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUGNED ORDER PASSED BY THE COMMISSIONER(APPEALS) IN VIOLATION OF THE PROVISION S OF SECTION 250(6) COULD NOT, THEREFORE, BE SUSTAINED. THE COMMISSIONER(APPEALS) SHOULD ACCORDINGLY DISPOS E OF THE ASSESSEES APPEAL AFRESH. 3 4. THE LD. SR. DEPARTMENTAL REPRESENTATIVE APPEARIN G ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSI ONS MADE BY THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 5. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUT HORITIES BELOW. IN THE IMPUGNED ORDER, LD. CIT(A) HAS MENTIONED THAT N OTICE ISSUED ON THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO.35 WAS RET URNED BACK UNSERVED WITH POSTAL REMARKS LEFT. THE ASSESSEE HAS NOT IN FORMED THE NEW ADDRESS. BE THAT IT MAY BE, IT WAS THE DUTY OF THE LD. CIT(A) TO PASS SPEAKING ORDER AS HELD BY THE TRIBUNAL IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS. JT. COMMISSIONER OF INCOME-TAX (SU PRA). THEREFORE, FOLLOWING THE SAID DECISION WE SET ASIDE THE IMPUGN ED ORDER OF LD. CIT(A) AND DIRECT HIM TO ISSUE NOTICE OF HEARING AT THE AD DRESS WHICH IS GIVEN AS ABOVE AND RE-DECIDE THE APPEAL OF THE ASSESSEE AFRE SH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 14/12 /2009 SD/- SD/- (D.C.AGRAWAL) (T.K.SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 14/12/2009 MAHATA/- 4 COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD