Padmavti Developers, Valsad V. The ACIT., Cent.Circle-4, Surat

ITA 3473/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6031 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-05-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 13-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK BAL
• Assessee Lawyers: S D CHHEDA
• Keywords: Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : A HMEDABAD CAMP AT SURAT (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON'BLE SH RI D.C. AGRAWAL , A.M.) I.T.A. NOS. 3472 TO 3476/AHD./2007 ASSESSMENT YEARS : 2000-2001 TO 2004-2005 PADMAVATI DEVELOPERS, VALSAD -VS.- ASSISTANT COMMISSIONER OF INCOME TAX, (PAN : AAGFP 8374 A) CENTRAL CIRCLE-4, SURAT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.D. CHHEDA RESPONDENT BY : SHRI ASHOK BAL, CIT, D .R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THESE FIVE APPEALS FILED BY THE ASSESSEE ARE AGAIN ST THE ORDER ALL DATED 23.05.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II, AHM EDABAD DISMISSING THE APPEALS OF THE ASSESSEE AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) IN RESPECT OF FOLLOWING ASSESSMENT YEARS :- ASSESSMENT YEAR AMOUNT OF PENALTY 2000-2001 RS.1,75,429/- 2001-2002 RS.3,77,163/- 2002-2003 RS.1,85,487/- 2003-2004 RS. 8,563/- 2004-2005 RS.1,67,020/- 2. BRIEFLY STATED THE FACTS ARE THAT IN THE IMPUGNE D ORDER, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DISMISSED ALL THE FIVE APPEALS FOR THE DETAILED REASONS GIVEN IN THE IMPUGNED ORDER, WHICH READS AS UNDER :- THESE CASES WERE FIXED FOR HEARING ON 19.02.2007. THE APPELLANT REQUESTED FOR ADJOURNMENT AND THE SAME WAS GRANTED. THE CASE WAS ADJOURNED TO 24.04.2007. THE APPELLANT AGAIN SOUGHT ADJOURNMENT AND THE CASE WAS ADJOURNED TO 22.5.2007. HOWEVER, NOBODY AT TENDED THE CASE NOR ANY ADJOURNMENT APPLICATIONS WERE RECEIVED ON 22.05 .2007. GROUNDS OF 2 ITA NOS .3472-3476/AHD/2007 APPEAL TAKEN BY THE APPELLANT AND THE STATEMENT OF FACTS SUBMITTED ALONGWITH APPEAL MEMOS AND ALSO THE SUBMISSIONS FUR NISHED HAVE ALSO BEEN CAREFULLY PERUSED AND CONSIDERED. AND I AM OF THE VIEW THAT THIS STATEMENT OF FACTS AND WRITTEN SUBMISSIONS FURNISHE D DO NOT SUBSTANTIATE THE CLAIM OF THE APPELLANT AND KEEPING IN VIEW THAT THE APPELLANT IS NOT INTERESTED IN PURSUING ITS APPEAL AND THEREFORE, TH ESE APPEALS ARE LIABLE TO BE DISMISSED IN LIGHT OF THE FOLLOWING DECISIONS :- 1. THE MANAGR, SBI, LUDHIANA VS.- LUDHIANA IN ITA NO. 224/CHANDI./2000 FOR AY 1998-1999 DECIDED BY HON'BL E ITAT CHANDIGARH, BENCH B ON 06.02.2004. 2. G.S. AUTO INTERNATIONAL LTD., LUDHIANA VS.- JCIT S PL. RANGE, LUDHIANA IN ITA NO. 725/CHANDI./2000 FOR AY 1995-19 96 DECIDED BY HON'BLE ITAT, CHANDIGARH BENCH A ON 27.02.2004. 3. CIT VS.- MULTIPLAN INDIA (P) LTD. 38 ITD 320 (DEL. ), 4. ESTATE OF LATE TUKOJJIRAO HOLKAR VS.- CWT 223 ITR 480 (MP). 3. RESPECTFULLY FOLLOWING THE VIEW TAKEN IN THE CAS ES (SUPRA), THE APPEAL FIELD BY THE APPELLANT IS DISMISSED IN DEFAULT IN A BSENCE OF ITS PERSUASION. 4. IN THE RESULT, THESE APPEALS ARE DISMISSED. AGGRIEVED BY THE ORDER OF LEARNED COMMISSIONER OF I NCOME TAX(APPEALS), THE ASSESSEE IS IN APPEALS BEFORE THE TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US, SHRI S.D. CHHE DA, LD. COUNSEL APPEARING ON BEHALF OF ASSESSEE ARGUED ON PRELIMINARY OBJECTION THAT LEARN ED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN DISMISSING THE APPEALS OF THE ASSESSEE BY FOLLOWING VARIOUS DECISIONS, WHICH INTER ALIA, INCLUDE THE DECISION OF ITAT, C BENCH, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS.- JCIT REPORTED IN [2000] 74 ITD 339 (AHD.). TH E LD. COUNSEL OF THE ASSESSEE DREW OUR ATTENTION TO THE PROVISIONS OF SECTION 250(6) AND C ONTENDED THAT THESE ARE MANDATORY AND IT IS OBLIGATORY FOR COMMISSIONER (APPEALS) TO PASS A SPE AKING ORDER STATING POINTS RAISED IN APPEAL, HIS DECISION THEREON AND REASONS FOR SUCH DECISION. IT WAS CONTENDED THAT ITAT, C BENCH, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS.- JCIT REPORTED IN [2000] 74 ITD 339 (AHD.) HELD THAT RELIANCE PLACED BY THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) ON THE DECISION OF ITAT, DELHI IN THE CASE OF CIT VS.- MU LTIPLAN INDIA (P) LTD. (SUPRA) IS ENTIRELY MISPLACED BECAUSE UNDER SECTION 254, TRIBUNAL HAS P LENARY POWER AS IT CAN DISPOSE OF THE APPEAL AS IT DEEMS FIT WHEREAS FIRST APPELLATE AUTHORITY U NDER SECTION 250(6) HAS NO SUCH POWER. THE LD. 3 ITA NOS .3472-3476/AHD/2007 COUNSEL OF THE ASSESSEE ARGUED AT LENGTH AND CONTEN DED THAT PENALTY LEVIED FOR ALL THE ASSESSMENT YEARS BE CANCELLED. 4. ON THE OTHER HAND, SHRI ASHOK BAL, CIT, D.R. APP EARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LEARNED COMMISSIO NER OF INCOME TAX(APPEALS). THE LD. D.R. POINTED OUT THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ALLOWED AMPLE OPPORTUNITY TO THE ASSESSEE, WHICH IS EVIDENT FROM THE IMPUGNED ORDER. SINCE NO COMPLIANCE WAS MADE, THE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD. 5. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN OUR OPINION, THERE IS NO NECESSITY TO GO INTO THE MERIT OF THE CASE AT THIS STAGE, BECAUSE IN THE IMPUGNED ORDER, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED ALL THE APPEALS OF THE ASSESSEE BY FOLLOWING THE VARIOUS DE CISIONS, I.E. (1) THE MANAGER, SBI, LUDHIANA VS.- LUDHIANA IN ITA NO. 224/CHANDI./2000 FOR AY 19 98-1999 DECIDED BY HON'BLE ITAT CHANDIGARH, BENCH B ON 06.02.2004; (2) G.S. AUTO INTERNATIONAL LTD., LUDHIANA VS.- JCIT SPL. RANGE, LUDHIANA IN ITA NO. 725/CHANDI./2000 FO R AY 1995-1996 DECIDED BY HON'BLE ITAT, CHANDIGARH BENCH A ON 27.02.2004; (3) CIT VS.- MULTIPLAN INDIA (P) LTD. 38 ITD 320 (DEL.), (4) ESTATE OF LATE TUKOJJIRAO HOLKAR VS.- CWT 223 ITR 480 (MP), WHICH, INTER ALIA, INCLUDE THE DECISION OF ITAT, C BENCH, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS.- JCIT (SUPRA), WHEREIN IT WAS HELD THAT 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 REASONS F OR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PROVISION IS THAT SUCH ORDERS ARE SUBJECT TO FU RTHER APPEAL OF THE TRIBUNAL. SPEAKING ORDER WOULD OBVIOUSLY ENABLE A PARTY TO KNOW PRECISE POIN TS DECIDED IN HIS FAVOUR 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. SECTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLE OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. TH E IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) IN VIOLATION OF THE PROVISIO NS OF SECTION 250(6) COULD NOT, THEREFORE, BE SUSTAINED. THE COMMISSIONER (APPEALS) SHOULD, ACCOR DINGLY DISPOSE OF THE ASSESSEES APPEAL AFRESH. 5.1. WE, THEREFORE, FOLLOWING THE DECISION OF ITAT, C BENCH, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS.- JCIT (SUPRA), SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF 4 ITA NOS .3472-3476/AHD/2007 INCOME TAX(APPEALS) AND DIRECT HIM TO DISPOSE OF AL L THE FIVE APPEALS OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY TO BOTH THE SIDES IN AC CORDANCE WITH LAW. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, ALL THE FIVE APPEALS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 11.06.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 / 06 / 2010 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, AHMEDABAD LAHA/SR.P.S.