Shri Rajesh Kabaria, Baroda V. The Income tax Officer,Ward-2(4), Baroda

ITA 3416/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6473 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 29-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR TEKRIWA LA
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBL E SHRI A.K.GARODIA, A.M.) I.T.A. NO. 3416/AHD./2009 ASSESSMENT YEAR : 2004-2005 SHRI RAJESH KABARIA, BARODA -VS - I.T.O., WARD-2(4), BARODA (PAN : ADQPK 5501M) (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI MANISH J. SHAH, A.R. RESPONDENT BY : SHRI SAMIR TEKRIWALA, SR.D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 24-09-2009 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II, BAR ODA IN APPEAL NO.CAB/II- 754/06-07 FOR THE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT FOR THE ASSESS MENT YEAR UNDER APPEAL, THE AO FRAMED THE ASSESSMENT UNDER SECTION 143(3) ON 19.12 .2006 AT A TOTAL INCOME OF RS.15,65,670/- AS AGAINST THE DECLARED INCOME OF RS .5,08,424/-. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO COMPLIANCE TO SHOW-CAUSE NOTICES. SHE ACCORDINGLY REPRODUCED THE GROUNDS OF APPEAL AND DI SMISSED THE SAME. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE OUTSET, SHRI MANISH J. SHAH, APPEARING ON BEHALF OF THE ASSESSEE, DREW OUR ATTENTION TO GROUND NO.1, WHICH READS AS UNDER: 1. THE C.I.T.(APPEALS) ERRED IN NOT DECIDING THE AP PEAL OF THE ASSESSEE ON MERITS AND MERELY DISMISSED THE APPEAL OF THE ASSES SEE AFTER REPRODUCING THE GROUNDS OF APPEAL FILED. ITA NO.3416/AHD/2009 2 4.1 THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THA T THE LD. CIT(A), BEING WITHOUT ANY REASONS, HAVING NOT DEALT WITH THE ISSUES ON ME RITS BEFORE DISPOSAL, IS BAD IN LAW AND DESERVES TO BE QUASHED AND ADDITIONS MADE THERE IN NEEDS TO BE DELETED IN TOTO. THE LD. COUNSEL FURTHER DREW OUR ATTENTION TO THE PROVI SIONS OF SECTION 250(6) OF THE I.T. ACT WHICH PROVIDES THAT THE APPELLATE ORDERS OF THE COMMISSIONER (APPEALS) ARE TO STATE THE POINTS ARISING IN THE APPEAL, THE DECISIO N OF THE AUTHORITY THEREON AND THE REASONS FOR SUCH DECISION. IN SUPPORT OF THIS, HE A LSO RELIED ON THE DECISION OF THE ITAT C BENCH, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS- JCIT REPORTED IN [2000] 74 ITD 339 (AHD) WHEREIN IT WAS HELD THAT PROVISIONS OF SECTION 250(6) ARE MANDATORY AND IT IS OBLIGATORY FOR COMMISSIONER(APP EALS) TO PASS A SPEAKING ORDER STATING POINTS RAISED IN APPEAL, HIS DECISION THERE ON AND REASONS FOR SUCH DECISION. 5. ON THE OTHER HAND, SHRI SAMIR TEKRIWALA, SR. D.R ., APPEARING ON BEHALF OF THE REVENUE, POINTED OUT THAT HE HAS NO OBJECTION, IN C ASE THE MATTER IS REMANDED BACK TO THE LD. CIT(A) FOR PASSING THE ORDER, IN ACCORDANCE WITH THE MANDATE OF PROVISIONS OF SECTION 250(6) OF THE I.T. ACT, 1961. 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT, IN THE IMPUGNED ORDER, THE LD. CIT(A) REPRODUCED THE GROUNDS OF APPEAL AND THEREAFTER DIS MISSED THE APPEAL OF THE ASSESSEE IGNORING THE PROVISIONS CONTAINED IN SECTION 250(6) OF THE I.T. ACT, 1961 WHICH ARE MANDATORY. WE, THEREFORE, SET ASIDE THE ORDER OF TH E LD. CIT(A) AND DIRECT HIM TO RE- DECIDE THE APPEAL OF THE ASSESSEE AFRESH, KEEPING I N VIEW THE PROVISIONS CONTAINED IN SECTION 250(6) OF THE I.T. ACT, 1961, AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 08.06.2011 SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08/06/2011 ITA NO.3416/AHD/2009 3 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AH MEDABAD. TALUKDAR/ SR. P.S.