M/s HIMUDA, Shimla V. ACIT, Shimla

ITA 372/CHANDI/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5447 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KEMWAL
• Section: 143(3)

Judgement Text

M/S HIMUDA V. ACIT,SHIMLA 372/CHANDI/2011 IN THE INCOME TAX APPELLATE TRIBUNAL: A BENCH: CH ANDIGARH BEFORE SHRI D K SRIVASTAVA, AM AND MS. SUSHMA CHOWL A, JM ITA NO. 372/CHANDI/2011 ASSESSMENT YEAR: 2007-08 M/S HIMUDA, NIGAM VIHAR V. A.C.I.T. CIRCLE, SHI MLA SHIMLA PAN: AAALH 0034 K (APPELLANT-ASSESSEE) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI S.S. KEMWAL ORDER D K SRIVASTAVA: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) ON 19.1.2011, ON SEVERAL G ROUNDS OUT OF WHICH GROUNDS NO. 1 READS AS UNDER:- 1 ADEQUATE OPPORTUNITY NOT GIVEN: THE LD. CIT(A) H AS ERRED IN FACT AND LAW BY PROCEEDINGS EX-PARTE ORDERS IN THE SAID CASE . THE CHRONOLOGY OF EVENT IS AS PER STATEMENT OF FACTS MENTIONED ABOVE FROM W HICH IT AMPLY CLEAR THAT THE LD. CIT(A) HAS DEFINED ALL CANONS OF NATURAL JU STICE. 2. THE APPEAL FILED BY THE ASSESSEE WAS FOUND TO BE DEFICIENT IN CERTAIN RESPECTS. THEREFORE, A DEFICIENCY MEMO TOGETHER WITH NOTICE O F HEARING WAS SERVED UPON THE ASSESSEE REQUIRING IT TO REMOVE THE DEFICIENCIES IN FILING THE APPEAL MEMO AND ALSO TO ENTER APPEARANCE ON THE DATE FIXED FOR HEARING I.E. 12.5.2011. THOUGH THE ASSESSEE HAS REMOVED THE DEFICIENCIES, THE ASSESSEE HAS HOWE VER NEITHER ENTERED APPEARANCE NOR FILED ANY APPLICATION FOR ADJOURNMENT ON THE DA TE FIXED FOR HEARING. LOOKING INTO THE NATURE OF GRIEVANCE OF THE ASSESSEE AND THE FAC TS AVAILABLE ON RECORD, IT WAS FELT THAT THE APPEAL COULD BE DISPOSED OFF WITHOUT THE P RESENCE OF THE ASSESSEE AND THEREFORE IT IS BEING DISPOSED OFF ACCORDINGLY AFTE R HEARING THE DR. 3. THE ASSESSEE IS A STATUTORY CORPORATION UNDER TH E ADMINISTRATIVE CONTROL OF THE GOVERNMENT OF HIMACHAL PRADESH. IT FILED ITS RETUR N OF INCOME ON 31.3.2008 RETURNING TOTAL INCOME AT RS. 23,36,500/-. AFTER PROCESSING T HE RETURN, THE CASE WAS SELECTED FOR SCRUTINY. AFTER HEARING THE ASSESSEE, THE ASSESSMEN T WAS COMPLETED U/S 143(3) ON 16.12.2009 ASSESSING THE TOTAL INCOME OF THE ASSESS EE AT RS. 8,67,27,114/- AFTER MAKING CERTAIN ADDITIONS/DISALLOWANCES. AGGRIEVED B Y THE ORDER PASSED BY THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). IT APPEARS THAT THERE WAS DEFAULT ON THE PART OF THE ASSESSEE IN EN TERING APPEARANCE BEFORE THE LD. CIT(A). THE LD. CIT(A) THEREFORE DISMISSED THE APPE AL FILED BY THE ASSESSEE IN LIMINE M/S HIMUDA V. ACIT,SHIMLA 372/CHANDI/2011 FOR WANT OF PROSECUTION. IT IS AGAINST THIS ORDER T HAT THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. THE FIRST GROUND OF APPEAL TA KEN BY THE ASSESSEE SEEKS TO CHALLENGE TO THE ORDER OF DISMISSAL PASSED BY THE L D. CIT(A) FOR WANT OF PROSECUTION. 4. WE HAVE HEARD THE LD. DR AND CAREFULLY CONSIDERE D THE MATERIAL AVAILABLE ON RECORD. SUB-SECTION (6) OF SEC 250 REQUIRES THAT TH E ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITI NG AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. THOUGH THE LD. CIT(A) HAS PASSED THE ORDER IN WRITING, HE HAS NEIT HER STATED THE POINTS FOR DETERMINATION NOR DECISION THEREON. QUITE APPARENT LY HE HAS GIVEN NO REASONS FOR DETERMINATION AS HE HAS NOT DETERMINED ANY OF THE I SSUES UNDER APPEAL BEFORE HIM ON MERITS. UNDOUBTEDLY THE LD. CIT(A) IS EMPOWERED TO DISPOSE OF THE APPEAL EX-PARTE IN SUITABLE CIRCUMSTANCES, HE HAS HOWEVER TO FOLLOW TH E PRESCRIPTION OF SUB-SEC (6) OF SEC 250. THE LD. CIT(A) HAS NOT FOLLOWED THE AFORE SAID PRESCRIPTION OF LAW. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE LD. CIT (A) IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF LD. CIT(A) FOR FRESH DECISI ON IN CONFORMITY WITH LAW INCLUDING THE PROVISION OF SUB-SEC (6) OF SEC 250. WE ORDER ACCO RDINGLY. REASONABLE OPPORTUNITY OF HEARING SHALL BE GIVEN TO BOTH THE PARTIES. 5. APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 13 TH MAY 2011 SD/- SD/- (SUSHMA CHOWLA) (D K SRIVA STAVA) JUDICIAL MEMBER ACCOUNTANT MEM BER CHANDIGARH: THE 13 TH MAY 2011 SURESH COPY TO: 1. THE APPELLANT, M/S HIMUDA, SHIMLA 2. THE RESPONDENT, A.C.I.T. CIRCLE, SHIMLA 3. THE CIT(A), SHIMLA 4. THE LD. CIT, SHIMLA 5. THE D.R, INCOME-TAX DEPARTMENT, CHANDIGARH BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH M/S HIMUDA V. ACIT,SHIMLA 372/CHANDI/2011