Syed Irtiza Hussain, Lucknow V. Income Tax Officer-ii(1), Lucknow

ITA 357/LKW/2014

• Counselvise Citation: 35723714 RSA 2014
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-04-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 08-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Assessee Lawyers: J J MEHROTRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.357/LKW/2014 ASSESSMENT YEAR:2004-05 SYED IRTIZA HUSSAIN 45, CANTT. ROAD LUCKNOW V. INCOME TAX OFFICER-II(1) LUCKNOW TAN/PAN:AAVPH5066M (APPELLANT) (RESPONDENT) ITA NO.358/LKW/2014 ASSESSMENT YEAR:2004-05 SHAHIDA KATOON 45, CANTT. ROAD LUCKNOW V. INCOME TAX OFFICER-II(3) LUCKNOW TAN/PAN:ADBPP4578L (APPELLANT) (RESPONDENT) ITA NO.359/LKW/2014 ASSESSMENT YEAR:2004-05 SYED MURTAZA HUSSAIN BURLINGTON HOTEL VIDHAN SABHA MARG LUCKNOW V. INCOME TAX OFFICER-II(3) LUCKNOW TAN/PAN:AAHPH0373C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. J. J. MEHROTRA, C.A. RESPONDENT BY: SHRI. HARISH GIDWANI, D.R. DATE OF HEARING: 22 04 2015 DATE OF PRONOUNCEMENT: 22 04 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY DIFFERENT ASSESSEES AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A) ON COMMON GROUNDS. :- 2 -: 2. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. WE, HOWEVER, FOR THE SAKE OF REFERENCE, EXTRACT THE GROUNDS RAISED IN I.T.A. NO. 357/LKW/2014 AS UNDER:- 1. THAT THE ID. CIT(A)-I, LUCKNOW HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN DECIDING AND DISMISSING THE APPEAL EX-PARTE. 2. THAT THE ID. CIT(A)-I, LUCKNOW HAS FAILED TO APPRECIATE THAT NO REASONABLE OPPORTUNITY WAS PROVIDED TO THE APPELLANT DUE TO NON- RECEIPT OF THE NOTICE AND/OR CONDUCT OF THE AUTHORIZED REPRESENTATIVE WHO HAS NOT INFORMED THE APPELLANT OF THE DATE OF HEARING FIXED IN RESPECT OF THE APPEAL AND NO PROPER NOTICE FIXING THE HEARING WAS RECEIVED BY THE APPELLANT WHICH RENDERS THE ORDER PASSED AS BAD IN LAW AND LIABLE TO BE SET ASIDE. 3. THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A)-I, LUCKNOW IS NOT JUSTIFIED IN DECIDING THE APPEAL EX-PARTE WITHOUT CONSIDERING THE STATEMENTS OF FACTS AND GROUNDS OF APPEAL AND WITHOUT GIVING FINDING IN RESPECT THERETO. 4. THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A)-I, LUCKNOW IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ID. ASSESSING OFFICER AND SUBJECTING TO TAX 1/5 TH OF THE CAPITAL GAINS IN THE HANDS OF THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT IN ANY VIEW OF THE MATTER THE ID. CIT(A)-I, LUCKNOW IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ID. ASSESSING OFFICER WITH REFERENCE TO VALUATION OF THE LAND AS ON 01.04.1991 @ RS. 100/- PER SQ.M. WHICH HAS BEEN DONE BY THE ASSESSING OFFICE MERELY ON ESTIMATES WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW. 6. THAT THE ORDER PASSED BY THE LD. CIT(A)-I, LUCKNOW IS WITHOUT PROPER OPPORTUNITY AND BAD IN LAW. 7. THAT THE ORDER PASSED BY THE LD. CIT(A)-I, LUCKNOW IS AGAINST THE MERITS, CIRCUMSTANCES AND LEGAL ASPECTS OF THE CASE. :- 3 -: 3. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS NOT AFFORDED OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT THE NOTICE OF HEARING ISSUED BY THE OFFICE OF THE LD. CIT(A) WAS NOT RECEIVED BY THE ASSESSEE AND HENCE NEITHER ANYBODY COULD ATTEND BEFORE THE LD. CIT(A) NOR APPLICATION FOR ADJOURNMENT COULD BE MOVED. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR RE-ADJUDICATION OF THE ISSUES RAISED BEFORE THE TRIBUNAL. 4. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A), WE FIND THAT NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A) THOUGH THE LD. CIT(A) HAS ISSUED NOTICES, BUT THE LD. CIT(A) HAS NOT RECORDED ANY FINDING WITH REGARD TO THE VALID SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THE LD. CIT(A) HAS DECIDED THE APPEAL EX-PARTE AND DISMISSED THE APPEAL OF THE ASSESSEE. SINCE THE LD. CIT(A) HAS ADJUDICATED THE APPEAL WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE SET ASIDE HIS ORDER AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORTS OF CO-OPERATION TO THE LD. CIT(A) IN DISPOSAL OF THE APPEAL. 6. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3OTH APRIL, 2015 :- 4 -: JJ:2104 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR