Kamlesh Jethmal Shah, Silvassa V. Income Tax Officer, Silvassa Ward, Silvassa

ITA 368/SRT/2023

AI Insights

The case involves Kamlesh Jethmal Shah, the appellant, contesting a penalty under section 271(1)(c) of the Income Tax Act, 1961, for the Assessment Year 2009-10. The penalty was initially confirmed by the NFAC/Ld. CIT(A) in an ex-parte order, which the appellant argued was passed without adequate opportunity for representation, violating natural justice. The Tribunal acknowledged the procedural oversight and decided to set aside the previous order, directing a fresh examination of the case by the Assessing Officer, ensuring the appellant is given a fair chance to present his case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300224 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-08-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, "SMC” BENCH, SURAT BEFORE DR. A. L. SAINI, AM आयकर अपीलसं./ITA No.368/SRT/2023 (Ǔनधा[रण वष[ / Assessment Year: (2009-10) (Virtual Court Hearing) Kamlesh Jethmal Shah Plot No.P-9/1, Everest Garden, Opp. Indian Bank, Naroli Road, Silvassa-396230 Vs. Income Tax Officer, Ward- Silvassa, First Floor, B.B.Mall, Near Civil Court, Tokarkhada, Silvassa-39230 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AEQPS 7259 R (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Assessee by Ms. Kaushali Shah, AR िनधाŊįरती की ओर से /Respondent by Shri Vinod Kumar, Sr. DR सुनवाईकीतारीख/Date of Hearing 21/08/2023 घोषणाकीतारीख/Date of Pronouncement 22/08/2023 आदेश / ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2009-10, is directed against the order passed by the National Faceless Appeal Centre, Delhi (in short “NFAC/ld. CIT(A)”], dated 21.04.2023, which in turn arises out of penalty order passed by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’), dated 30.06.2017. 2. Grounds of appeal raised by the assessee are as follows: “1.On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming penalty levied by Assessing Officer u/s 271(1)(c) of the Act. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in passing order without providing enough opportunities to represent the case of the assessee. 3. It is therefore prayed that the above addition/disallowance made by the Assessing Officer may please be deleted. Page | 2 ITA.368/SRT/2023 AY.09-10 Kamlesh J Shah 4. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 3. At the outset itself, the Learned Counsel for the assessee, assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The Ld. Counsel submitted that in order to submit details and documents, the assessee sought for adjournment during appellate proceedings, however, NFAC/Ld. CIT(A) did not grant the adjournment and passed ex parte order dated 21.04.2023, which is against the principle of natural justice. The ld Counsel also stated that in assessee`s case the basic facts have not been examined by the Assessing Officer, therefore, ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the Assessing officer may be granted to the assessee. 4. On the other hand, Ld. Sr.DR for the Revenue supported the order of lower authorities. 5. I have heard both the sides and gone through the relevant material on record. I note that assessee filed adjournment application, however, NFAC/Ld. CIT(A) did not grant the adjournment, therefore assessee could not file documents and evidences before ld CIT(A) and as a result, NFAC/Ld. CIT(A) has passed the impugned order, as ex parte. Considering the above facts, I note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the NFAC/ld. CIT(A). I note that the NFAC/ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. I note that it is settled law that principles of natural justice and fair play require that the affected party Page | 3 ITA.368/SRT/2023 AY.09-10 Kamlesh J Shah is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, I restore the matter back to the file of Assessing Officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, I deem it fit and proper to set aside the order of the NFAC/ld. CIT(A) and remit the matter back to the file of the Assessing Officer to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 22/08/2023 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- (Dr. A.L. SAINI) ACCOUNTANT MEMBER स ू रत / Surat Ǒदनांक/ Date: 22/08/2022 DKP (Sr. PS Outsourcing) Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat