Shri Lalitbhai Ashumal Gangwani, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(1), RAJKOT-GUJARAT

ITA 38/RJT/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4933 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 10-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MJ RANPURA
• Keywords: Set aside
• Section: 271(1)(c); 250; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NOS. 36 TO 38/RJT/2017 ASSESSMENT YEAR : 2006-07 TO 2008-09 SHRI LALITBHAI ASHUMAL GANGWANI, BHAGWATI ENTERPRISE, 1 ST FLOOR, MAHALAXMI CHAMBERS, DANAPITH, RAJKOT PAN : AEMPG 8081 R V/S . INCOME-TAX OFFICER, WARD-2(1), RAJKOT / (APPELLANT) .. / (RESPONDENT) ASSESSEE BY : SHRI M J RANPURA, AR REVENUE BY : SHRI PRAVEEN VERMA, SR DR / DATE OF HEARING : 09/05/2019 /DATE OF PRONOUNCEMENT : 30/05/2019 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT THREE APPEALS ARE DIRECTED AT THE INSTA NCE OF THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LD. CIT(A)-2, RAJKOT , ALL DATED 10.11.2016, PASSED IN ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LEARNED CIT(A) HAS ERRED IN DISMISSING HIS APPEALS EX-PARTE AND CONFIRMING THE PENALTY OF RS.75,070/-, RS.2,07,520/- AND RS.6,52,210/- IMPOSED BY THE ASSE SSING OFFICER UNDER SECTION 271(1)(C) FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09 RESPECTIVELY. 3. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD T HAT LEARNED FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEALS OF THE ASSESSEE FOR WANT OF PROSECUTION. ITA NOS. 36 TO 38/RJT /2017 SHRI LALITBHAI ASHUMAL GANGWANI VS. ITO AY : 2006-07 TO 2008-09 - 2 - THE ORDERS OF THE LEARNED CIT(A), ON MERITS, ARE VE RBATIM SAME IN ALL THE THREE ASSESSMENT YEARS. FOR THE FACILITY OF REFERENCE, WE TAKE NOTE OF THE RELEVANT PART OF THE ORDER OF THE LEARNED CIT(A) IN ASSESSMENT YE AR 2006-07 WHICH READS AS UNDER:- 4) THIS APPEAL WAS FIXED FOR HEARING NUMBER OF TIM ES, DETAILS OF WHICH ARE GIVEN BELOW, BUT NO COMPLIANCE WAS MADE TO ANY OF THE NOT ICES ISSUED. ALL THESE NOTICES WERE DULLY SERVED. SI. NO. DATE OF NOTICE DATE FIXED FOR HEARING REMARK 1 23.10.2015 20.11.2015 NONE ATTENDED NOR FILED ANY APPLICATION FOR ADJOURNMENT WAS FILED 2. 02.02.2016 26.02.2016 NONE ATTENDED NOR FILED ANY APPLICATION FOR ADJOURNMENT WAS FILED 3. 15.09.2016 04.10.2016 NONE ATTENDED NOR FIL ED ANY APPLICATION FOR ADJOURNMENT WAS FILED 4. 18.10.2016 07.11.2016 (LAST OPPORTUNITY) NONE ATTENDED NOR APPLICATION FOR ADJOURNMENT WAS FILED. FROM THE ABOVE IT IS CLEAR THAT DESPITE SEVERAL OPP ORTUNITIES, NONE APPEARED ON BEHALF OF THE APPELLANT NOR ANY REQUEST FOR ADJOURN MENT HAS BEEN FILED BEFORE THE UNDERSIGNED. IT SEEMS THAT THE APPELLANT IS NOT INT ERESTED IN PROSECUTING THE APPEAL; HENCE THE APPEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED FOR NON- PROSECUTION. IN MY ABOVE VIEW, I FIND SUPPORT FROM THE FOLLOWING DECISIONS:- (I) IN THE CASE OF CIT VS. B. N. BHATTACHARGEE & ANOTHE R 118 ITR 461 (RELEVANT PAGES 477 & 478) WHEREIN THEIR LORDSHIPS HAVE HELD THAT 'THE APPEAL DOES NOT MEAN MERELY FILING OF APPEAL BUT EF FECTIVELY PURSUING IT.' (II) IN THE CASE OF ESTATE OF LATE TUKOJI RAO HOLKER VS. CWT 223 IR 480 (MP) WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATIONS IN THEIR ORDER. 'IF THE PARTLY AT WHOSE INSTANCE THE REFERENCE IS M ADE FALLS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION O F THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE, THIS COURT IS NOT BOUND TO ANSWER THE REFERENCE. (III) IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL). THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL WHI CH WAS FIXED HEARING ITA NOS. 36 TO 38/RJT /2017 SHRI LALITBHAI ASHUMAL GANGWANI VS. ITO AY : 2006-07 TO 2008-09 - 3 - BUT ON THE DATE OF HEARING NOBODY REPRESENTED THE R EVENUE APPLICANT, NOR ANY COMMUNICATION FOR ADJOURNMENT WAS RECEIVED. THE RE WAS NO COMMUNICATION OR INFORMATION AS TO WHY REVENUE CHOO SE TO REMAIN ABSENT ON THAT DATE. THE TRIBUNAL ON THE BASIS OF INHERENT POWER TREATED THE APPEAL FILED BY THE REVENUE AS UN-ADMITTED IN VIEW OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 5) THEREFORE, KEEPING IN VIEW OF THE ABOVE, THE AP PEAL FILED BY THE APPELLANT IS LIABLE TO BE DISMISSED FOR NON-PROSECUTION. ON MERI TS I FIND THAT THE ASSESSING OFFICER IS JUSTIFIED IN LEVYING IN RESPECT OF ADDIT IONS MADE U/S. 68 IN RESPECT OF UNEXPLAINED CASH DEPOSITS. THE PENALTY IS THEREFORE SUSTAINED ON MERITS TOO. 6) IN THE RESULT, THE APPEAL IS TO BE TREATED DISM ISSED BOTH FOR WANT OF PROSECUTION AND ON MERIT. 4. SUB-SECTION (6) OF SECTION 250 CONTEMPLATES THAT LEARNED CIT(A) WOULD STATE POINTS IN DISPUTE AND THEREAFTER RECORD REASO NS IN SUPPORT OF HIS CONCLUSIONS ON THOSE POINTS. A PERUSAL OF THE LEAR NED CIT(A)S ORDER WOULD INDICATE THAT LEARNED CIT(A) HAS NEITHER DETERMINED THE POINTS IN DISPUTE NOR NOTICED THE SUBMISSIONS OF THE ASSESSEE BEFORE THE ASSESSING OFFICER OR NOTICED THE STATEMENTS OF FACTS FILED ALONGWITH THE APPEALS . THE LEARNED CIT(A) SIMPLY NOTICED THE NON-ATTENDANCE OF THE ASSESSEE AND THER EAFTER DISMISSED THE APPEALS FOR WANT OF PROSECUTION. IT IS TRUE THAT THE ASSES SEE FAILED TO PROSECUTE HIS APPEALS AND TO SUBMIT NECESSARY EXPLANATION; BUT, A GAIN, SUB-SECTION (6) OF SECTION 250 MANDATES THE LEARNED CIT(A) TO DECIDE T HE APPEALS ON MERITS AND NOT TO DISMISS THEM IN DEFAULT OR FOR WANT OF PROSE CUTION. AS FAR AS THE OBSERVATIONS OF THE LEARNED CIT(A) THAT THE APPEALS ARE DISMISSED ON MERITS ARE CONCERNED, WE ARE OF THE VIEW THAT NO SUCH DISCUSSI ON IS DISCERNIBLE IN THE ORDER OF THE LEARNED CIT(A). IT IS JUST A SINGLE WORD FO R THE SAKE OF EXHIBITING COMPLIANCE OF MANDATE UNDER SECTION 250(6) OF THE A CT. THEREFORE, WE SET ASIDE ALL THESE ORDERS AND RESTORE ALL THE APPEALS TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION. THE LEARNED CIT(A), WHILE ADJU DICATING THESE APPEALS, SHALL TAKE INTO CONSIDERATION THE JUDGMENT OF HONBLE MAD RAS HIGH COURT IN THE CASE ITA NOS. 36 TO 38/RJT /2017 SHRI LALITBHAI ASHUMAL GANGWANI VS. ITO AY : 2006-07 TO 2008-09 - 4 - OF B. LOGANATHAN VS. ITO, REPORTED IN [2019] 412 IT R 642 (MAD). THE ASSESSEE IS DIRECTED TO CO-OPERATE WITH THE LEARNED CIT(A) AND SUBMIT NECESSARY DETAILS. 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30 TH MAY, 2019 AT AHMEDABAD. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD, DATED 30/05/2019 *BT. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. , / DR, ITAT, RA JKOT 6. & / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT. REGISTRAR) ! ', / ITAT, RAJKOT 1. DATE OF DICTATION- 29.05.2019 2 PAGES DICTATION PA D ATTACHED 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29.05.2019.. OTHER MEMBER 29 .05.2019 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.-. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORD 8. DATE OF DESPATCH OF THE ORDER