Jagmoham Ramjidas Malhotra, Surat V. Income tax Officer Ward -1(3)(2), Surat

ITA 456/SRT/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1899 (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

JAGMOHAN RAMJIDAS MALHOTRA VS. ITO, WARD-1(3)(2), SURAT/ITA NO.456/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.456/SRT/2018 / ASSESSMENT YEAR : 2014-15 JAGMOHAN RAMJIDAS MALHOTRA, 7-D, MEGHRATH APARTMENT, BHATTAR ROAD, SURAT 395 007. [PAN: ABCPM 1022 B] VS. THE INCOME TAX OFFICER , WARD-1(3)(2), 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 22.05.2018 OF CIT(A)-2, SURAT PERTAINING TO 2014-15 ASSESSMENT YEAR ON VARIOUS GROUNDS, HOWEVER, SINCE THE PARTIES WERE HEARD ONLY IN RESPECT OF GROUND NO.1 TO 3 THE SAME ARE REPRODUCED 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. JAGMOHAN RAMJIDAS MALHOTRA VS. ITO, WARD-1(3)(2), SURAT/ITA NO.456/SRT/2018/A.Y.2014-15 PAGE 2 OF 3 2. THE LD.AR INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE ALSO THE CIT(A) HAS DISMISSED THE ASSESSEES APPEAL FOR NON-REPRESENTATION RELYING UPON 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., IT WAS HIS SUBMISSION THAT ON THE LAST DATE OF HEARING I.E. 30.04.2018, THE HEARING COULD NOT TAKE PLACE WHEN THE APPEAL WAS FIXED FOR HEARING AS IT WAS A PUBLIC HOLIDAY. IT WAS SUBMITTED THE CIT(A) HAS DISMISSED THE APPEAL NOTING THAT ADJOURNMENT WAS SOUGHT. REFERRING TO THE ADJOURNMENTS SOUGHT BY THE ASSESSEE BEFORE THE CIT(A) IT WAS HIS SUBMISSION THAT DUE TO CONTINUOUS SICKNESS OF HIS BUSINESS PARTNER HE REMAINED BUSY IN MANAGING THE BUSINESS AS WELL AS ATTENDING TO HIS PARTNER ON ACCOUNT OF WHICH FACT THE NECESSARY DOCUMENTS ETC., COULD NOT BE COMPILED FOR WHICH PURPOSES ADJOURNMENTS WERE BEING SOUGHT. IN THESE CIRCUMSTANCES, IT WAS HIS LIMITED PRAYER THAT ACCEPTING HIS ORAL UNDERTAKING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS A REMAND MAY BE DIRECTED TO THE CIT(A). RELIANCE WAS PLACED UPON THE ORDER DATED 04.09.2018 IN THE CASE OF ITA NO.48/CHD/2018 FOR A.Y. 2011-12. 3. THE LD.SR.DR CONSIDERING THE FACTS STATED NO OBJECTION TO THE SAID PRAYER FOR THE ASSESSEE. 4. WE HAVE HEARD SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 5. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, WE SET-ASIDE THE IMPUGNED ORDER WE FIND IN THE PECULIAR FACTS OF THE PRESENT CASE WE FIND THAT NOTWITHSTANDING THE FACT THAT ON THE LAST DATE THE HEARING WAS FIXED ON A PUBLIC HOLIDAY ON ACCOUNT OF WHICH REASONS THE APPEAL COULD NOT BE HEARD EVEN OTHERWISE IT IS SEEN THAT THE DISPOSAL OF THE ASSESSEES APPEAL IN THE FACTS OF THE PRESENT CASE IS NOT IN TERMS OF THE STATUTORY REQUIREMENTS. SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX JAGMOHAN RAMJIDAS MALHOTRA VS. ITO, WARD-1(3)(2), SURAT/ITA NO.456/SRT/2018/A.Y.2014-15 PAGE 3 OF 3 ACT, 1961 MANDATES THAT THE COMMISSIONER (APPEALS) WHILE DECIDING THE APPEAL IS REQUIRED TO DISPOSE THE APPEAL STATING THE 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. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. 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 / / / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT