SHRI MANOJ BHOJWANI, Nagpur V. I.T.O. WARD -4(1), Nagpur

ITA 340/NAG/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2162 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 ITA NO. 340/NAG/2016 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 340/NAG/2016. ASSESSMENT YEAR : 2004 - 05. SHRI MANOJ BHOJWANI, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 4(1), NAGPUR. PAN AFIPB9877M. APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SMT. AGNES P. THOMAS. DATE OF HEARING : 08 - 07 - 2016 DATE OF PRONOUNCEMENT : 8 TH JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - 4, NAGPUR DATED 29 - 02 - 2016 AND PERTAINS TO ASSESSMENT YEAR 200 4 - 05 . THE FIRST GROUND OF APPEAL READ S AS UNDER : THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN PASSING APPELLATE ORDER EX - PARTE WITHOUT DUE CONSIDERATION OF MATERIAL AVAILABLE ON RECORDS IN A SUMMARY MANNER. OTHER ISSUES RAISED RELATE TO THE VALIDITY OF ASSUMPTION OF JURISDICTION AND ADDITION OF RS.13,01,508/ - . 2. I HAVE HEARD THE LEARNED D.R. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, IN MY CONSIDERED OPINION THE ISSUE CAN BE DISPOSED OF BY HEARING THE LEARNED D.R. 3 . IN THIS CASE THE LEARNED CIT(APPEALS) HAS NOTED THAT COUPLE OF NOTICES WERE SENT TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE. HENCE THE LEARNED 2 ITA NO. 340/NAG/2016 CIT(APPEALS) HAS DISMISSED THE ASSESSEES APPEAL WITHOUT PASSING A SPEAKING ORDER. SECTION 251 OF THE I.T. ACT WHICH CONTAINS THE POWERS OF THE CIT(APPEALS) NO WHERE PROVIDES THAT THE CIT(APPEALS ) IS EMPOWERED TO DISMISS THE APPEAL FOR NON PROSECUTION AND NOT PASS A SPEAKING ORDER ON THE MERITS OF THE CASE. AS A MATTER OF FACT HONBLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED THAT EVEN THE ITAT CANNOT PASS AN ORDER BY DISMISSING THE APPEAL FOR NON P ROSECUTION WITHOUT PASSING AN ORDER ON MERITS OF THE CASE. I FURTHER FIND THAT HONBLE APEX COURT IN THE CASE OF SAHARA INDIA (FIRM) 300 ITR 403 HAS HELD THAT EVEN ADMINISTRATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. CONSIDERING THE PRESENT DECISION OF THE CIT(APPEALS) ON THE ANVIL OF AFORESAID DISCUSSION AND PRE CEDENT , I FIND THAT INTEREST OF JUSTICE DEMANDS THAT THE ISSUE IN THIS APPEAL SHOULD BE REMITTED TO THE FILE OF THE LEARNED CIT(APPEALS). ACCORDINGLY THE ISSUE IS REMITTE D TO THE FILE OF LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) IS DIRECTED TO PASS A SPEAKING ORDER ON THE MERITS OF THE ISSUE IN THIS CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO APPEA R BEFORE THE LEARNED CIT(APPEALS) SUO MOTO WITHIN 30 DAYS AFTER RECEIVING THIS ORDER TO CANVASS THE APPEAL. I MAKE IT CLEAR THAT I HAVE NOT CONSIDERED THE MERITS OF THE CASE IN ANY MANNER WHATSOEVER. 4 . IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STAND ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 8 TH JULY, 2016. 3 ITA NO. 340/NAG/2016 COPY FORWARDED TO : 1. SHRI MANOJ BHOJWANI, MAA DURGA COLLECTION, HONEY SAGAR BUILDING, WARDHAMAN NAGAR, NAGPUR. 2. I.T.O., WARD - 4(1) , NAGPUR. 3. C.I.T. - , NAGPUR. 4. CIT(APPEALS), - 4, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.