M/s H.S. Embroidery, Amritsar. V. The Dy. Commissioner of Income Tax, Amritsar.

ITA 364/ASR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5627 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 28-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUDHIR MEHRA
• Keywords: Opportunity of being heard

Judgement Text

ITA NO.364 (ASR)/2016 ASST. YEAR: 2010-11 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.364(ASR)/2016 ASSESSMENT YEAR:2010-11 M/S. H.S. EMBROIDERY C/O MR. SUDHIR MEHRA ADVOCATE, PARK LANE, RANI-KA-BAGH, AMRITSAR. PAN: AAEFH-1085N VS. DY. CIT, CIRCLE-1, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SUDHIR MEHRA (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (DR.) DATE OF HEARING: 20.04.2017 DATE OF PRONO UNCEMENT: 21 ST APRIL, 2017 ORDER PER DIVA SINGH: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 29.01.2011 OF CIT(A) -AMRITSAR, PERTAINING TO 2010-11 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS . (I) BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE APPELLANT RESPECTFULLY SUBMITS THAT LD. CIT(A) HAS ERRED, IN LAW AND IN FA CTS OF THE CASE IN DISMISSING THE APPEAL ON THE GROUND OF NON-PROSECUTION. (II) THAT THE ORDER OF LD. CIT(A)-1, ASR. DISMISSING THE APPEAL ON THE GROUND OF NON- PROSECUTION IS ERRONEOUS AND MISCONCEIVED. (III) THAT THE EX-PARTE ORDER OF LD. CIT(A)-1, DISM ISSING THE APPEAL OF THE APPELLANT IS NEITHER A REASONED OR SPEAKING ORDER NOR THE MER ITS OF THE CASE HAVE BEEN DISCUSSED AS SUCH, IS NOT IN ACCORDANCE WITH LAW. (IV) THAT THE APPELLANT PRAYS THAT THE IMPUGNED ORD ER OF THE CIT(A)-1, AMRITSAR, BE KINDLY ORDERED TO BE SET ASIDE TO THE FILE OF LD. C IT(A) WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE APPELLANT AFRESH, IN ACCORDANCE W ITH LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING THE APPELLANT. 2. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT T HE IMPUGNED ORDER HAS BEEN PASSED EX-PARTE AND AS PER EVIDENCE ON RECORD NOTICE SENT TO THE ASSESSEE WITH AN INCOMPLETE ADDRESS WAS RETU RNED BACK UNSERVED. ACCORDINGLY, IT WAS HIS PRAYER THAT FOR NO FAULT OF ASSESSEE HE WAS ITA NO.364 (ASR)/2016 ASST. YEAR: 2010-11 PAGE 2 OF 4 DEPRIVED OF AN OPPORTUNITY OF BEING HEARD. A PRAYER FOR REMAND WAS MADE SO AS TO BE PROVIDED AN OPPORTUNITY OF BEING HEARD. 3. THE LD. SR. DR REFERRING TO THE ADDRESS MENTIONE D IN THE IMPUGNED ORDER SUBMITTED THAT THE ADDRESS MENTIONED IS AN AB BREVIATED ADDRESS M/S. H.S. EMBROIDERY, ISLAMABAD, AMRITSAR AND MAY NOT HAVE BEEN THE ADDRESS AT WHICH NOTICE WAS SENT. THE RECORD SHOWS THAT AS PER THE ASSESSMENT ORDER THE ADDRESS OF THE ASSESSEE IS M/S H.S. EMBROIDERY, LAL TEXTILES PREMISES, OPP. BARA KARKET, KRISHNA NA GAR, ISLAMABAD, AMRITSAR. THE LD. AR FURTHER SUBMITTED THAT IN THE EVENTUAL ITY OF THE PRAYER OF THE ASSESSEE FOR REMAND IS ACCEPTED ON HI S ORAL UNDERTAKING THAT THE ASSESSEE SHALL NOT ABUSE THE TRUST REPOSED IT WAS HIS REQUEST THAT NOTICE MAY BE SENT TO THE ADDRESS MENTIONED IN COLUMN NO.10, WHICH IS HIS ADDRESS M/S H.S. EMBROIDERY, C/O MR. SUDHIR MEHRA ADVOCATE, PARK LANE, RANI-KA-BAGH, AMRITSAR. . THE LD. SR. DR RELIED UPON THE IMPUGNED ORDER. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT NOTWITHSTANDING TH E FACT THAT THE IMPUGNED ORDER IS EX-PARTE ORDER, EVEN OTHERWISE, I T IS SEEN THAT THE ORDER HAS BEEN PASSED CONTRARY TO THE STATUTORY PRO VISIONS WHICH GOVERNE THE DECISION MAKING PROCESS OF THE CIT(A). IT IS SEEN THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED ON THE FO LLOWING REASONING. UNDER THE CIRCUMSTANCES, I AM OF THE VIEW THAT ASS ESSEE IS NOT INTERESTED IN PURSUING OF THE PRESENT APPEAL AND TH E SAME IS LIABLE TO BE DISMISSED ON THIS GROUND ITSELF. THE LAW ASSISTS TH OSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS. THE PRINCIPLE IS WELL EMBODIED IN THE WELL KNOWN DICTUM VIGILANTIBUS, NON DORMENTIBUS, JURA S UBVENIUNT. IT IS CLEAR FROM THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE AO HAS WRITTEN A WELL REASONED ORDER BY MAKING AN ADDITION OF RS. 56,08)828/-. THUS KEEPING IN VIEW OF THE GROUNDS OF APPEAL AND ASSESS MENT ORDER IT IS FOUND THAT THE AOS DECISION IS CORRECT. HENCE THE APPEAL IS D ISMISSED. CONSIDERING THE FACTS OF THIS CASE AND RELYING UPON THE DECISION OF THE ITAT DELHI BENCH IN CIT VS. MULTILPLAN INDIA LTD. 3 8 ITD 320 AND THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CAS E OF ESTATE OF LATE TUKOJI ITA NO.364 (ASR)/2016 ASST. YEAR: 2010-11 PAGE 3 OF 4 RAO HOLKAR VS. CWT (1997) 223 ITR 480 THE PRESENT A PPEAL IS DISMISSED FOR WANT OF PRESENTATION AND ON MERIT, I ORDER ACCORDIN GLY. 4.1 IT IS SEEN THAT SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 REQUIRES THE COMMISSIONER OF APPEALS TO EXERCI SE ITS APPELLATE AUTHORITY BY NOT ONLY FOLLOWING THE MANDATE OF SUB- SECTIONS (1) TO (5) OF SECTION 250 OF THE ACT. BUT ALSO STIPULATES THAT THE COMMISSIONER (APPEALS)] DISPOSING OF THE APPEAL SHALL PASS AN ORDER IN WRI TING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REA SON FOR THE DECISION . IT IS FOUND THAT THE SAID STATUTORY REQUIREMENT IS NOT F ULFILLED IN THE PRESENT CASE. IN VIEW OF THIS PATENT AND OBVIOUS SHORT COMI NG IN THE IMPUGNED ORDER IT IS DEEMED APPROPRIATE TO SET ASIDE THE SAM E BACK TO THE FILE OF LD. CIT(A) TO MAKE GOOD THE STATUTORY DEFICIT. 4.2 IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAITH IS UTILIZED BY THE ASSESSEE FAIRLY BY MAKING FULL AND PROPER COMPLIANCE BEFORE THE COMMISSIONERS APPEAL. IN THE EVENT OF A BUSE, IT IS MADE CLEAR THAT THE LD. COMMISSIONER SHALL BE AT LIBERTY TO DE CIDE THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST APRIL, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER /PK/PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER