Shri Mazhar Sayeed Khan, Bhopal V. The Income Tax Officer 2(2), Bhopal

ITA 432/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2722 (ITAT-INDORE)
• Duration Of Justice: 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 24-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: SHABBIR HUSSAIN
• Keywords: Opportunity of being heard; Set aside
• Section: 144; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH-I, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.432/IND/2010 AY: 2006-07 MAZHAR SAYEED KHAN BHOPAL PAN AGCPK4589J ..APPELLANT V/S. ITO, WARD 2(2), BHOPAL ..RESPONDENT APPELLANT BY : SHRI SHABBIR HUSSAIN, CA DEPARTMENT BY : SMT. APARNA KARAN, SR. DR ORDER THE ASSESSEE HAS CHALLENGED THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS) DATED 10.3.201 0 ON THE GROUND THAT THE APPELLATE AUTHORITY IS NOT JUSTIFIED IN DI SMISSING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. DURING HEARING OF THIS APPEAL I HAVE HEARD THE L D. COUNSEL FOR ASSESSEE WHO CONTENDED THAT DUE TO ILL HEALTH OF TH E ASSESSEE, THE PROCEEDINGS COULD NOT BE ATTENDED TO AND EVEN OTHER WISE AS PER THE 2 PROVISIONS OF SECTION 44AF OF THE ACT, THE ASSESSEE WAS NOT BOUND TO MAINTAINED BOOKS OF ACCOUNTS. ON THE OTHER HAND, THE LEARNED SENIOR DR STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDI NG THAT IT WAS DUTY OF THE ASSESSEE TO REMAIN VIGILANT AND TO APPEAR ON THE APPOINTED DATE. 3. ON PERUSAL OF RECORD AND AFTER HEARING THE RIVAL SUBMISSIONS, THE BRIEF FACTS ARE THAT THE ASSESSEE IS RUNNING A RETA IL SHOP OF EGGS AND SHOWED NET PROFIT AT 5% OF TOTAL SALES. THE ASSESS EE FURNISHED HIS RETURN DECLARING TAXABLE INCOME AT RS.1,14,700/- ON 27.6.2006 WHICH WAS COMPLETED U/S 144 ON 28.8.2008 DETERMINING THE TOTAL INCOME AT RS.3,44,810/- WHEREIN DISALLOWANCE OF VARIOUS EXPEN SES WORTH RS.2,310,107/- WAS MADE. EVEN ON APPEAL, THE ASSESS EE COULD NOT APPEAR BEFORE THE LD. FIRST APPELLATE AUTHORITY. IT IS SEEN THAT THE NOTICES WERE SENT BY SPEED POST AT THE GIVEN ADDRESS TO WHI CH EITHER NO COMPLIANCE WAS MADE OR THE ASSESSEE SOUGHT ADJOURNM ENT. WHATEVER MAY BE REASON, IT IS AN ADMITTED FACT THAT THE ASSE SSMENT IS ALSO UNDER SECTION 144 OF THE ACT AND EVEN BY THE FIRST APPELL ATE AUTHORITY, THE ORDER WAS PASSED IN THE ABSENCE OF THE ASSESSEE. THOUGH IT WAS THE DUTY OF THE ASSESSEE TO COMPLY WITH THE NOTICES, BUT AT THE SAME TIME SINCE THE ASSESSEE WAS SUFFERING FROM AILMENT, ONE MORE OPPOR TUNITY MAY BE GIVEN. IN VIEW OF THESE FACTS, I AM OF THE CONSIDE RED OPINION THAT NO PERSON SHOULD BE CONDEMNED UNHEARD. KEEPING IN VIEW THE FACTS 3 NARRATED ABOVE, I SET ASIDE THE ORDER OF THE LD. FI RST APPELLATE AUTHORITY WITH THE DIRECTION TO REDECIDE THE ISSUE INVOLVED I N THIS APPEAL AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) ON THE DATE COMMUNICATED TO HIM BY THE OF FICE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT NEEDS SPEC IFIC MENTION THAT IN CASE THE ASSESSEE STILL DOES NOT APPEAR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), HE IS AT LIBE RTY TO DECIDE THE MATTER EX PARTE IN ACCORDANCE WITH LAW. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENC E OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CO NCLUSION OF HEARING ON 9 TH JULY, 2010. (JOGINDER SINGH) JUDICIAL MEMBER DATED: 9.7.2010 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE D/-