M/S ALLIED BUILDER, SRINAGAR V. COMMISSIONER OF INCOME TAX , JAMMU

ITA 381/ASR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7975 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV K GUBGOTRA
• Assessee Lawyers: MALIK MUKHTAR AHMAD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. NO. 381/(ASR)/2017 AS SESSMENT YEAR: 2012-13 ALLIED BUILDERS, LASJAN, SRINAGAR [PAN: AAOFA 8580D] VS. INCOME TAX OFFICER WARD 3(1), SRINAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MALIK MUKHTAR AHMAD (ADV.) RESPONDENT BY: SH. RAJEEV K. GUBGOTRA (D. R.) DATE OF HEARING: 09.04.2018 DATE OF PRONOUNCEMENT: 12.04.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS), JAMMU ('CIT(A )' FOR SHORT) DATED 30.03.2017, DISMISSING THE ASSESSEES APPEAL CONTES TING ITS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DATED 18.03.2015 FOR THE ASSESSMENT YEAR (AY) 2012-13. 2. AT THE OUTSET, IT WAS SUBMITTED BY THE LD. AUTHO RIZED REPRESENTATIVE (AR), SHRI MALIK MUKHTAR AHMAD, ADVOCATE, THAT THE NON-AP PEARANCE BEFORE THE FIRST APPELLATE AUTHORITY, AS NOTED BY HIM AT PARA 3 OF H IS ORDER, MAKING IT A GROUND FOR DISMISSING THE ASSESSEES APPEAL IN LIMINE , WAS ON ACCOUNT OF CURFEW IN SRINAGAR - ITA NO. 381 (ASR)/2017(AY 2012-13) ALLIED BUILDERS V. ITO 2 WHERE THE ASSESSEE IS BASED, WHICH PREVAILED FOR MO ST PART OF THE 2016, I.E., INVOLUNTARY. EVEN IF EX-PARTE , THE LD. CIT(A) OUGHT TO HAVE DECIDED THE ASSESSEE S APPEAL ON MERITS, RATHER THAN PER A NON-SPEAKING OR DER. THE MATTER, IT WAS ACCORDINGLY PRAYED, BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION ON MERITS, IN WHICH PROCEEDINGS THE ASSESSEE UNDERT AKES TO PARTICIPATE. THE DEPARTMENTAL REPRESENTATIVE (DR) DID NOT OBJECT TO ANY OF THE ASSERTIONS, AS WELL AS THE PRAYER BY THE LD. AR. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. IN OUR CLEAR VIEW, THE ASSESSEE, EVEN IF PREVENTED BY SUFFICIENT CAUSE IN PROSECUTING ITS APPEAL, OUGHT TO HAVE APPLIED FOR ADJOURNMENT, EVEN IF PER POST, DELINEATING THE FACTS AND CIRCUMSTANCES FOR ITS NON -APPEARANCE WHICH WAS REPEATED, AND WHICH WE ARE SURE WOULD HAVE BEEN APP RECIATED BY THE LD. CIT(A). HE, EVEN IF PRESUMED TO BE AWARE OF THE GROUND SITU ATION AT SRINAGAR AT THE RELEVANT TIME, HAS, IN OUR VIEW, IN THE ABSENCE OF ANY ADJOU RNMENT MOTION MADE, BEEN FAIR IN ALLOWING AS MANY AS EIGHT OPPORTUNITIES TO THE A SSESSEE TO PRESENT ITS CASE, OF WHICH FOUR EVENLY SPREAD, FALL DURING THE YEAR 20 17. AT THE SAME TIME, HOWEVER, IN OUR OPINION, THE LD. CIT(A) HAS TRANSCENDED HIS MANDATE BY DISMISSING THE ASSESSEES APPEAL IN LIMINE . SECTION 250(6) REQUIRES OF HIM TO PASS AN ORDER ON MERITS, COMMUNICATING TH E REASONS THAT INFORM THE SAME. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AN D PROPER TO, SETTING ASIDE THE IMPUGNED ORDER, REMIT THE APPEAL BACK TO THE FILE O F THE LD. CIT(A) FOR ADJUDICATION AFRESH ON MERITS, ISSUING DEFINITE FINDINGS OF FACT , AND AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. WE DECIDE ACCORDINGLY. ITA NO. 381 (ASR)/2017(AY 2012-13) ALLIED BUILDERS V. ITO 3 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 12, 201 8 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 12.04.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1)THE APPELLANT: ALLIED BUILDERS, LASJAN, SRIN AGAR (2) THE RESPONDENT: INCOME TAX OFFICER, WARD 3( 1), SRINAGAR, J&K (3) THE CIT(APPEALS), JAMMU (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER