Arman Enterprise, Surat V. The Income Tax Officer, Ward-5(1), Surat

ITA 3036/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0897 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 17-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDHAN
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NOS.3036 & 3071/AHD/2014 / ASSESSMENT YEAR: 2011-12 & 2010-11 RESPECTIVELY ARMAN ENTERPRISE, C/O. RASIKBHAI MANILAL PATEL, A/301, 3 RD FLOOR, ROYAL RESIDENCY, B/H CNG PUMP, CANAL ROAD, PARVAT PATIA, MAGOB, SURAT PAN : AAOFA 1780 B VS ITO, WARD-5(1), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : WRITTEN SUBMISSIONS (NONE) REVENUE BY : SHRI K. MADHUSUDHAN, SR DR / DATE OF HEARING : 02/08/2016 / DATE OF PRONOUNCEMENT: 03/08/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-I, SURAT, BOTH DATED 25.08.2014 PASSED FOR ASSESSMENT YEARS 2010-1 1 AND 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE IN THESE APPE ALS ARE TO THE EFFECT THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS:- A) IN DISMISSING THE APPEAL EX-PARTE IN SUMMARILY MANNER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD; FOR AY 2010-11 ITA NO. 3036 & 3071/AHD/2014 ARMAN ENTERPRISE VS. ITO AY : 2011-12 & 2010-11 2 B) IN ESTIMATING THE TOTAL SALE PROCEEDS FROM 14 FLATS AT RS.4,54,44,000/- BY TAKING SALE CONSIDERATION OF EACH FLAT AT RS.32, 46,000/- INSTEAD OF CONSIDERING THE VALUE SHOWN IN THE SALE DEED. C) IN APPLYING GROSS PROFIT @ 24% ON ESTIMATED SALE PR OCEEDS AND THEREBY ERRED IN MAKING ADDITION OF RS.86,74,037/- BY DETERMINING THE TOTAL INCOME AT RS.93,25,510/- AS AGAINST THE R ETURNED INCOME OF RS.6,51,473/-. FOR AY 2011-12 D) IN ESTIMATING THE TOTAL SALE PROCEEDS FROM 10 FLATS AT RS.3,24,60,000/- BY TAKING SALE CONSIDERATION OF EACH FLAT AT RS.32, 46,000/- INSTEAD OF CONSIDERING THE VALUE SHOWN IN THE SALE DEED. E) IN APPLYING GROSS PROFIT @ 24% ON ESTIMATED SALE PR OCEEDS AND THEREBY ERRED IN MAKING ADDITION OF RS.44,52,446/- BY DETERMINING THE TOTAL INCOME AT RS.57,67,920/- AS AGAINST THE R ETURNED INCOME OF RS.13,15,474/-. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE; HOWEVER, WRITTEN SUBMISSIONS WERE FILED. THEREFORE, WE CONSIDER IT APPROPRIATE TO PROCEED WITH THE PRESENT APPEALS EX- PARTE QUA THE ASSESSEE- APPELLANT, AFTER CONSIDERING THE WRITTEN SUBMISSION S FILED BY THE ASSESSEE AND THE SUBMISSIONS OF THE LD. DR. 4. LD. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORI TIES, WHEREAS THE ASSESSEE IN ITS WRITTEN SUBMISSIONS SUBMITTED AS UN DER:- .. 2. THE LD. CIT(A) PASSED THE EXPARTE ORDER ON THE G ROUND THAT OUT OF THE THREE NOTICES, TWO NOTICES WERE RETURNED BY THE POS TAL AUTHORITIES WITH THE REMARKS 'INCOMPLETE ADDRESS'. THE LD. CIT(A) FURTHER MENTIONED THAT THE THIRD NOTICE WAS NOT RETURNED BACK BUT ASSESSEE DID N'T COMPLY. THE LD. ITA NO. 3036 & 3071/AHD/2014 ARMAN ENTERPRISE VS. ITO AY : 2011-12 & 2010-11 3 CIT(A) THEREFORE PASSED THE ORDER DISMISSING THE ASS ESSEE'S APPEAL FOR WANT OF PROSECUTION WITHOUT PASSING SPEAKING ORDER ON ME RITS OF THE CASE. 3. IN FACT, ASSESSEE DIDN'T RECEIVE ANY OF THE NO TICES. ASSESSEE MENTIONED THE FULL ADDRESS IN THE FORM NO. 35 FILED WITH THE CIT( A). ASSESSEE CANNOT BE FAULTED FOR THE INCOMPLETE ADDRESS MENTIONED BY THE OFFICE OF THE CIT(A) WHEN ASSESSEE MENTIONED THE FULL AND COMPLETE ADDRE SS IN APPEAL MEMO IN FORM NO. 35. IT IS TO BE NOTED THAT THE OFFICE OF T HE ASSESSEE WAS NOT OPERATED REGULARLY AS THE PROJECT WAS COMPLETED AND THE FIRM HAS DEVELOPED ONLY ONE PROJECT. IT IS TO BE NOTED THAT WITH APPEAL MEMO AS SESSEE FILED THE LETTER OF AUTHORITY IN FAVOUR OF CHARTERED ACCOUNTANTS AND IN CASE OF RETURN OF NOTICE, THE OFFICER OF THE CIT(A) COULD HAVE SERVED THE NOTI CE TO ASSESSEE'S AUTHORIZED REPRESENTATIVE. THE APPELLATE ORDER WAS SERVED TO T HE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 4. EVEN OTHERWISE, THE LD. CIT(A) SHOULD HAVE PASSE D THE SPEAKING ORDER AS REQUIRED U/S. 250 OF THE ACT, SUB SECTION (6) WHICH M ANDATES THAT 'THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEA L SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE D ECISION THEREON AND THE REASON FOR THE DECISION.' THE RELIANCE IS PLACED ON THE DECISION OF THE HONOURABLE AHMEDABAD BENCH IN CASE OF GUJARAT THEMIS BIOSYM LTD. V/S. JT. CIT - 74 ITD 339 (AHMD.). 5. IN VIEW OF THE ABOVE, YOUR HONOURS ARE REQUEST ED TO RESTORE THE APPEAL TO THE FILE OF THE CIT(A) TO DECIDE THE APPEAL AFRESH A FTER PROVIDING ADEQUATE OPPORTUNITY TO THE APPELLANT. 5. WE HAVE HEARD LD. DR, PERUSED THE MATERIAL AVAIL ABLE ON RECORD INCLUDING THE WRITTEN SUBMISSIONS OF THE ASSESSEE A ND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. IN OUR CONSIDERE D VIEW, THESE APPEALS DESERVE TO BE SET ASIDE AND RESTORED BACK TO THE LD . CIT(A) FOR FRESH ADJUDICATION AFTER ENSURING PROPER SERVICE OF NOTIC E ON THE ASSESSEE AND AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE FOR FOLLOWING REASONS:- I) LD. CIT(A) CANNOT SUMMARILY DISMISS ASSESSEES APPE ALS AND HAS TO PASS AN ORDER ON MERITS EVEN IF THE ASSESSEE DOE S NOT APPEAR; ITA NO. 3036 & 3071/AHD/2014 ARMAN ENTERPRISE VS. ITO AY : 2011-12 & 2010-11 4 II) FROM THE ASSESSEES CONTENTION, IT EMERGES THAT THE ASSESSEE HAD A SUFFICIENT CAUSE IN NOT BEING ABLE TO PRESENT ITSEL F IN THE APPEALS DUE TO NON-SERVING OF NOTICE. CONSEQUENTLY, THE ASSESSEES APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 3 RD AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 03/08/2016 *BIJU T. / 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