Laxmi Devi Mohata, Surat V. Income tax Officer Ward-1(2)(3), Surat

ITA 455/SRT/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1900 (ITAT-SURAT)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 21-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S CHOUDHARY
• Keywords: Opportunity of being heard
• Section: 250

Judgement Text

LAXMI DEVI MOHATA VS. ITO, WARD-1(2)(3), SURAT/ITA NO.455/SRT/2018/A.Y.2014-15 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT , . . , BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A. NO.455/SRT/2018 / ASSESSMENT YEAR : 2014-15 LAXMI DEVI MOHATA, 505, GOOD LUCK TEXTILE MARKET, RING ROAD, SURAT. [PAN: AJNPM 1014 E] VS. THE INCOME TAX OFFICER , WARD-1(2)(3), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI RAMESH MALPANI CA /REVENUE BY SHRI P.S.CHOUDHARY SR. DR / DATE OF HEARING: 0 9 . 0 1 .201 9 /PRONOUNCEMENT ON 11 .01.2019 /O R D E R PER DIVA SINGH, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 11.05.2018 OF CIT(A)-2, SURAT PERTAINING TO 2014-15 ASSESSMENT YEAR ON VARIOUS GROUND ON MERIT INCLUDING THE FOLLOWING 3 GROUND REPRODUCED AS UNDER : 1) THAT THE EX-PARTE APPEAL ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS WRONG AND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT HEARING THE APPELLANT. 2) THAT THE EX-PARTE APPEAL ORDER PASSED BY LD. CIT(A) DISMISSING THE APPEAL OF THE APPELLANT IS WRONG AND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT CONSIDERING THE SUBMISSION AND CONTENTIONS OF THE APPELLANT FURNISHED IN THE FORM OF STATEMENT OF FACTS ALONG WITH THE APPEAL AND ALSO BY WAY OF ARGUMENTS RAISED DURING THE ASSESSMENT PROCEEDINGS AS RE-PRODUCED IN THE ASSESSMENT ORDER. 3) THAT THE EX-PARTE ORDER PASSED BY LD. CIT(A) DISMISSING THE APPEAL OF THE APPELLANT IS WRONG AND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT DECIDING THE VARIOUS GROUNDS OF APPEAL ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, STATEMENT OF FACTS AND GROUNDS OF APPEAL. 2. SINCE THE PARTIES WERE HEARD ONLY IN RESPECT OF THE ABOVE 3 GROUNDS ACCORDINGLY FACTS RELATABLE TO THE SAME ARE ONLY BEING ADDRESSED. A PERUSAL OF THE ORDER SHOWS THAT AFTER AFFORDING VARIOUS OPPORTUNITIES LAXMI DEVI MOHATA VS. ITO, WARD-1(2)(3), SURAT/ITA NO.455/SRT/2018/A.Y.2014-15 PAGE 2 OF 3 ULTIMATELY THE CIT(A) PASSED AN EX-PARTE ORDER NOTING THAT ON THE DATE THAT EVEN ON THE DATE 30.04.2018 THE ASSESSEE SOUGHT AN ADJOURNMENT AND FAILED TO APPEAR ACCORDINGLY RELYING ON B.N.BHATTACHARJEE AND ANOTHER (118 ITR 461); ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) (MP); THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF M/S.CHEMIPOL V/S. UNION OF INDIA IN EXCISE APPEAL NO.62 OF 2009; LATE TUKOJIRAO HOLKAR (MP), 223 ITR 480. AND CIT VS. MULTIPLAN INDIA (P) LTD. (38 ITD 320) (DEL)ETC., THE APPEAL WAS DISMISSED. 3. THE LD.AR INVITING ATTENTION TO THE EARLY HEARING APPLICATION WHICH HAS BEEN ADJUDICATED UPON IN HIS FAVOUR SUBMITTED THAT THE ASSESSEE SOUGHT ADJOURNMENT BEFORE THE CIT(A) ON ACCOUNT OF THE FACT THAT THE ASSESSEES ACCOUNTANT HAD LEFT THE JOB AND ALSO THERE WAS CHANGE IN THE CHARTERED ACCOUNTANT APPOINTED BY HIM ON ACCOUNT OF WHICH FACTS ADJOURNMENT APPLICATION HAD BEEN MADE. HOWEVER, ON THE LAST DATE OF HEARING I.E. 30.04.2018 IT BEING A PUBLIC HOLIDAY ON ACCOUNT OF BUDDHA POURNIMA HEARING COULD NOT TAKE PLACE. IN THESE CIRCUMSTANCES, IT WAS HIS PRAYER THAT ACCEPTING HIS ORAL UNDERTAKING THE IMPUGNED ORDER MAY BE SET-ASIDE ENABLING THE ASSESSEE TO PARTICIPATE IN THE PROCEEDINGS. THE RELIANCE WAS PLACED UPON THE ORDER DATED 04.09.2018 IN ITA NO.48/CHD/2018 FOR A.Y. 2011-12 SUPPORTING THE PRAYER FOR DEMAND. 4. THE LD.SR.DR DID NOT POSE ANY OBJECTION TO THE SAID PRAYER OF THE ASSESSEE. 5. WE HAVE HEARD SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 6. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, WE SET-ASIDE THE IMPUGNED ORDER WE FIND THAT IN THE PECULIAR FACTS OF THE PRESENT CASE THERE WAS NO EFFECTIVE OPPORTUNITY OF BEING HEARD PROVIDED TO THE ASSESSEE AS THE SAID DATE ADMITTEDLY WAS A PUBLIC HOLIDAY. WE FURTHER FIND THAT NOTWITHSTANDING THAT EVEN OTHERWISE THE DISPOSAL OF ASSESSEES APPEAL IN THE AFOREMENTIONED MANNER IS NOT IN TERMS OF THE STATUTORY LAXMI DEVI MOHATA VS. ITO, WARD-1(2)(3), SURAT/ITA NO.455/SRT/2018/A.Y.2014-15 PAGE 3 OF 3 REQUIREMENTS. SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 MANDATES THAT THE COMMISSIONER (APPEALS) WHILE DECIDING THE APPEAL IS REQUIRED TO DISPOSE THE APPEAL STATING POINTS FOR DETERMINATION; THE DECISION THEREON AND THE REASONS FOR THE DECISION. WE FIND THAT THE CIT(A) HAS NOT FOLLOWED THE SAID STATUTORY MANDATE. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT ASSESSEE SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS ALSO MADE CLEAR THAT IN THE EVENTUALITY, THE ASSESSEE ABUSES THE TRUST REPOSED, THE LD.CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11-01-2019. SD/- SD/- ( .. / O.P.MEENA) ( /DIVA SINGH) /ACCOUNTANT MEMBER ( /JUDICIAL MEMBER) / SURAT, DATED : 11 TH JANUARY , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT