Mahendrabhai Ambalal Patel, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITA 4575/AHD/2007

• Counselvise Citation: 457520514 RSA 2007
• Duration Of Justice: 4 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-11-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 28-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEVENDRASINGH KALYAN
• Assessee Lawyers: S N DIVETIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 4575/ AHD/2007 (ASSESSMENT YEAR 2004-05) MAHENDRABHAI AMBALAL PATEL, 199-A, PATELVAS, KOCHRAB, PALDI, AHMEDABAD VS. DCIT, CC-2(2), AHMEDABAD PAN/GIR NO. : ABBPP5057A I.T.A.NO. 2310/AHD/2010 (ASSESSMENT YEAR 2004-05) SHRI TARUN D KARIA, VS. ACIT, CC2(2), M-196/2347, PRATIXA APARTMENTS, AHMEDABAD SOLA ROAD, NARANPURA, AHMEDABAD PAN/GIR NO.: AMGPK1458A (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N DIVETIA, AR RESPONDENT BY: SHRI DEVENDRASINGH KALYAN, CIT DR DATE OF HEARING: 09.11.2012 DATE OF PRONOUNCEMENT: 14.12.2012 O R D E R PER SHRI A. K. GARODIA, AM:- BOTH THEE APPEALS ARE FILED BY TWO DIFFERENT ASSES SEES FOR THE SAME ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2004-05 AND TH E SAME ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT(A) III, AHMEDABA D DATED 31.10.2007 I.T.A.NO. 4575 /AHD/2007 I.T.A.NO. 2310/AHD/2010 2 IN THE CASE OF SHRI MAHENDRABHAI AMBALAL PATEL IN I .T.A.NO. 4575/AHD/2007 AND DATED 3.11.2007 IN THE CASE OF SH RI TARUN D KARIA IN I.T.A.NO. 2310/AHD/2010. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT IN THE CASE OF SHRI M A PATEL, THE TRIBUNAL HAS PASSED ITS ORDE R IN FIRST ROUND ON 26.02.2008 AND AGAINST THIS TRIBUNAL ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE HONBLE GUJARAT HIGH COURT U/S 260A OF T HE INCOME TAX ACT, 1961. HE SUBMITTED A COPY OF THE JUDGEMENT OF HON BLE GUJARAT HIGH COURT IN THE CASE IN TAX APPEAL NO.1798/2010 DATED 19.10.2010. HE POINTED OUT THAT AS PER THIS JUDGEMENT OF HONBLE G UJARAT HIGH COURT, THE MATTER HAS BEEN RESTORED BACK BY THE HONBLE GUJARA T HIGH COURT TO THE TRIBUNLA FOR AFRESH DECISION BY WAY OF HEARING OF A PPEAL OF THE ASSESSEE SHRI M.A. PATEL AND ALSO THE APPEAL OF ANOTHER ASSE SSEE SHRI TARUN D KARIA FOR TAKING AN APPROPRIATE DECISION ON MERITS OF THE CASE. HE SUBMITTED THAT IN VIEW OF THIS DIRECTION OF HONBLE GUJARAT HIGH COURT, BOTH THESE APPEALS SHOULD BE HEARD AND DECIDED TOGE THER AND THE DELAY IN FILING THE APPEAL IN THE CASE OF SHRI TARUN D KARIA OF 872 DAYS SHOULD BE CONDONED IN VIEW OF THE DIRECTION OF HONBLE GUJARA T HIGH COURT. 3. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND THE JUDGEMENT OF HONBLE GUJARAT HIGH CO URT RENDERED IN THE CASE OF SHRI M.A. PATEL (SUPRA). AS PER THIS JUDGE MENT OF HONBLE GUJARAT HIGH COURT, WE HAVE TO DECIDE BOTH THESE AP PEALS TOGETHER. HENCE, DELAY IN THE CASE OF TARUN D KARIA IS CONDON ED AND HIS APPEAL IS ADMITTED. BEFORE US, ONE OF THE GROUNDS RAISED BY THE ASSESSEE IN THE CASE I.T.A.NO. 4575 /AHD/2007 I.T.A.NO. 2310/AHD/2010 3 OF SHRI M.A. PATEL IS THIS THAT LD. CIT(A) HAS ERRE D IN LAW AND /OR FACTS IN HOLDING THAT THE ASSESSMENT WOULD NOT BE VITIATED B Y LACK OF OPPORTUNITY AND NATURAL JUSTICE. THE ASSESSEE HAD SUBMITTED TH AT DUE TO HIS ILLNESS AND HOSPITALIZATION, HE WAS NOT IN A POSITION TO FURNIS H ADEQUATE DETAILS AND EVIDENCE. THIS SUBMISSION WAS MADE BEFORE LD. CIT( A) ALSO AND SIMILAR GROUND WAS RAISED BEFORE LD. CIT(A) AS PER GROUND N O.1.2 AND ON THIS ASPECT, THE LD. CIT(A) HAS REJECTED THIS GROUND OF THE ASSESSEE BUT WE FIND THAT WHILE REJECTING THIS GROUND AND DECIDING THIS ISSUE, HE HAS NOT CONSIDERED THIS ASPECT THAT BECAUSE OF ILLNESS AND HOSPITALIZATION, THE ASSESSEE WAS NOT IN A POSITION TO FURNISH ADEQUATE DETAILS AND EVIDENCE. CONSIDERING ALL THESE FACTS, WE FEEL THAT IN THE IN TEREST OF JUSTICE, THE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) FOR A FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER P ROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. SINCE, W E HAVE RESTORED BACK THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH DECI SION, NO DECISION IS CALLED FOR ON MERIT AT THIS STAGE. 5. IN THE RESULT, THIS APPEAL OF THE ASSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, WE TAKE UP THE 2 ND APPEAL I.E. THE APPEAL IN THE CASE OF SHRI TARUN D KARIA IN I.T.A.NO. 2310/AHD/2010. WE FIND THAT THE ISSUES INVOLVED IN BOTH THESE APPEALS ARE INTERCONNECTED A ND SINCE WE HAVE RESTORED BACK THE MATTER TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION IN THE CASE OF SHRI M A PATEL, THE ENTIRE ISSUE IN THI S CASE OF THIS ASSESSEE I.T.A.NO. 4575 /AHD/2007 I.T.A.NO. 2310/AHD/2010 4 IS ALSO RESTORED BACK TO THE FILE OF LD. CIT(A) FO R A FRESH DECISION ON ALL ISSUES SIMULTANEOUSLY. 7. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 06/12/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/12/12. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 14/12/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.14/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14/12/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .