Shri Dharmesh M. Patel, Ahmedabad V. The Income tax Officer,Ward-9(2), Ahmedabad

ITA 4227/AHD/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9066 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 30-11-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S GEHLOT
• Assessee Lawyers: U S BHATH
• Keywords: Opportunity of being heard; Set aside
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.4227/AHD/2007 ASSESSMENT YEAR:2001-02 DATE OF HEARING:12.8.09 DRAFTED:9.9.09 SHRI DHARMESH M PATEL, PROP. ALPA TRANSPORT, C/O. M/S. RAVI & DEV. CHARTERED ACCOUNTANTS 201, ARTH, BH/ A.K. PATEL HOUSE, MITHAKHALI SIX ROADS, AHMEDABAD 380 009 PAN NO.AIFPP5556R V/S . INCOME TAX OFFICER, WARD-9(2), AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI U. S. BHATH, AR RESPONDENT BY:- SHRI B.S.GEHLOT, CIT DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD IN APPEAL NO. CI T(A)- XV/ITO.WARD.9(2)/160/03-04 DATED 30-09-2005. THE A SSESSMENT WAS FRAMED BY THE INCOME-TAX OFFICER, WARD-9(2), AHMEDABAD U/S.144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 27-02-2004 FOR THE ASSESSMENT YEAR 2001-02. 2. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE F AIRLY STATED THAT NONE OF THE AUTHORITIES BELOW HAS CONSIDERED TO PROVIDE REASONA BLE OPPORTUNITY OF BEING HEARD. IT WAS STATED THAT IN THIS CASE AN EX PARTY ASSESSMENT ORDER U/S.144 WAS PASSED BY THE ASSESSING OFFICER AND THE APPEAL FILED AGAINST THE ABOVE ORDER HAS BEEN DISMISSED BY THE CIT(A)-XV AHMEDABAD. ACCORDING TO THE LD. CO UNSEL, THE ASSESSEE WAS ITA NO.4227/AHD/2007 A.Y. 2001-02 SH. DHARMESH M PATEL V. ITO, WD-9(2) ABD PAGE 2 PREVENTED BY SUFFICIENT CAUSE FOR NON-COMPLIANCE WI TH THE NOTICES ISSUED BY THE LOWER AUTHORITIES. IT WAS ALSO POINTED OUT THAT IT IS A FACT THAT THE ASSESSEE WAS FACING MULTIPLE CRIMINAL PROCEEDINGS DURING THE RELEVANT P ERIOD AND THIS FACT HAS BEEN CONSIDERED BY THIS TRIBUNAL AHMEDABAD B BENCH FOR ASSESSMENT YEAR 1999-00 IN ITA NO.509/AHD/2006 DATED 20-02-2009 IN ASSESSEES OWN CASE. IN VIEW OF THE ABOVE, THE LD. COUNSEL URGED THE BENCH TO APPRECIAT E THE FACTS OF THE CASE FOR THE YEAR UNDER CONSIDERATION WHICH ARE SIMILAR TO THE F ACTS OF THE CASE FOR THE ASSESSMENT YEAR 1999-00. THEREFORE IT WAS SUBMITTED BY HIM, THAT THE ISSUE INVOLVED IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL FO R ASSESSMENT YEAR 1999-00 AND REQUESTED FOR SETTING ASIDE. THE LD. DR ALSO CONCE DED THE POSITION. 3. WE FIND THAT THIS TRIBUNAL AHMEDABAD B BENCH F OR ASSESSMENT YEAR 1999- 00 IN ITA NO.509/AHD/2006 DATED 20-02-2009 IN ASSESSEES OWN CASE HAS CONSIDERED THE FACTS AS UNDER:- THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A), THE ASSESSE E COULD NOT MAKE REPRESENTATION BECAUSE DURING THE PERIOD HE WAS FAC ING MULTIPLE CRIMINAL PROCEEDINGS DURING THE PERIOD HE WAS FACING MULTIPL E CRIMINAL PROCEEDINGS DURING THE PERIOD 2002 O 2005. NOW THE ASSESSEE IS IN POSITION TO FURNISH THE NECESSARY FACTS AND FIGURES IN SUPPORT OF HIS RETUR N OF LOSS, THEREFORE, IN THE INTEREST OF JUSTICE, THE IMPUGNED ORDER OF THE CIT( A) BE SET ASIDE AND THE ASSESSING OFFICER BE DIRECTED TO REFRAME THE ASSESS MENT AS PER THE ORDER OF THE CIT U/S.263. AT THE TIME OF HEARING, THE LEARNE D COUNSEL FOR THE ASSESSEE FILED VARIOUS EVIDENCES IN SUPPORT OF THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE WAS FACING MULTIPLE CRIMINAL PROCEEDINGS D URING THE PERIOD 2002 TO 2005 AND THEREFORE THE IMPUGNED ORDER OF THE CIT(A) BE SET ASIDE AND THE MATTER MAY BE SENT BACK TO THE FILE OF THE AO FOR R E-ADJUDICATION. SHRI K.K. VYAWAHARE, CIT, OBJECTED TO THE PAYER OF THE ASSESS EE COULD HAVE FURNISHED THE RELEVANT DETAILS / FACTS AND FIGURES. 3. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. I T IS PERTINENT TO NOTE THAT THE AO FRAMED THE ASSESSMENT U/S.144 R.WS.. SECTION 263 OF THE ACT. LOOKING TO THE FACTS AND VARIOUS EVIDENCES FURNISHED BEFORE US , WE ARE CONVINCED THAT THE ASSESSEE WAS TREATING MULTIPLE CRIMINAL PROCEED INGS AND WAS PREVENTED BY SUFFICIENT CAUSE TO REPRESENT BEFORE THE AUTHORI TIES BELOW WITH THE NECESSARY FACTS AND FIGURES. IN VIEW OF ABOVE, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE O F THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL RE-F RAME THE ASSESSMENT IN ACCORDANCE WITH LAW AS PER DIRECTIONS GIVEN BY THE CIT(A) IN HIS ORDER U/S.263 OF THE ACT. THE ASSESSEE IS ALSO DIRECTED TO CO-OPE RATE THE AO BY FURNISHING ALL NECESSARY FACTS / DETAILS AND FIGURES AS MAY BE REQUIRED BY THE AO. THE ITA NO.4227/AHD/2007 A.Y. 2001-02 SH. DHARMESH M PATEL V. ITO, WD-9(2) ABD PAGE 3 AO SHALL RE-ADJUDICATE THE MATTER AFRESH IN ACCORDA NCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 4. IN VIEW OF THE ABOVE FACTS, WE SET ASIDE THIS AP PEAL ALSO TO THE FILE OF THE AO AND AO IS DIRECTED TO DECIDE IN ACCORDANCE WITH LAW AND IN TERMS OF DIRECTION IN ASSESSMENT YEAR 1999-00 AS DIRECTED BY THE TRIBUNAL ABOVE. ACCORDINGLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11/09/2009 SD/- SD/- (P.K.BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 11/09/2009 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-XV AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD