M/s. Girnar Complex, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-2, JUNAGADH

ITA 477/RJT/2011

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0202 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-09-2012
• Assessment Year: 1994-1995
• Appeal Filed On: 13-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: D R ADHAI A
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . . , . . , BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 47 7 /RJT / 201 1 / ASSESSMENT YEAR 200 7 - 08 M/S GIRNAR COMPLEX, C/O RAVJIBHAI GOPALBHAI TAL.KUKAVAV, DIST, AMRELI, PAN: AA GFG6056J ( / APPELLANT) VS. ASSTT.COMMISSIONER OF INCOME TAX, JUNAGHAD . / RESPONDENT A / ASSESSEE BY SHRI. D R ADHAI A / REVENUE BY SHRI AVINASH KUMAR / DATE OF HEARING 27.9.2012 / DATE OF PRONOUNCEMENT 5 . 10 .2012 / ORDER . . , / T. K. SHARMA, J. M . THI S APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 30.6.20 1 0 PASSED BY THE LD. CIT(A) - RAJKOT EX - PARTE QUA THE ASSESSEE FOR THE ASSESSMENT YEAR 1994 - 95. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER : 1. THAT THE LD. CIT(A) H AS ERRED IN LAW AND FACTS IN CONFORMIGN ADDITION OF RS.5,66,900/ - MADE BY THE LD. AO THE ADDITION NEEDS DELETION. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT DELETING THE ADDITION OF RS.5,66,900/ - MADE BY THE LD. AO THOUGH THE SAME WA S DELETED BY THEN LD. CIT(A) THROUGH A SPEAKING ORDER DATED 23.4.2002. THE LD CIT(A) FURTHER ERRED IN LAW AND FACTS IN NOT GIVING SPECIFIC REASON FOR HIS DISAGREEMENT WITH HIS PREDECESSOR THE ADDITION NEEDS DEL ETION. ITA NO. 477/RJT/2011 2 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION OF RS.5,66,900/ - MADE BY THE LD. AO THOUGH THE ASSESSEE HAS PROVED THE SOURCE THERE OF AND AS PER DECISION OF THE HON.GUJARAT HIGH COURT; ASSESSEE IS NOT REQUIRED TO PROVE SOURCE OF SOURCES. THE ADDITION NEEDS DELETI ON. 4. WITHOUT PREJUDICE, THE ASSESSMENT MADE IS BAD IN LAW AND DESERVES ANNULMENT. 5. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND REASONABLE OPPORTUNITY HAS BEEN PROVIDE. THE ASSESSMENT NEEDS ANNULMENT . 6. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIEN T AND REASONABLE OPPORTUNITY HAS BEEN PROVIDED BY THE L.D CIT(A). 7. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AND/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKES PLACE 3. AT THE TIME OF HEARING BEFORE US ON BEHALF OF THE ASSESSEE SHRI D.R.ADHIA, ATP APPEARED AND POINTED OUT THAT THE LD. CIT(A) FIXED THE APPEAL FOR HEARING ON 30.6.2010, WHICH COULD NOT BE ATTENDED AS THE RELATIVE OF ONE OF THE PARTNERS WHO WAS LOOKING AFTER THE TAX MATTERS WAS SERIOUSLY ILL. ULTIMATELY, THE RELATIVE OF THE PARTNER DIED. IN SUPPORT OF THIS, THE LD. AR OF THE ASSESSEE PLACED ON RECORD A COPY OF DEATH CERTIFICATE DATED 6.5.2011 ISSUED BY GOVERNMENT OF GUJARAT, DEPARTMENT OF HEALTH AND FAMILY WELFARE. HE FURTHER SUBMITTED THAT THE LD. CI T(A) ISSUED ONLY ONE NOTICE OF HEARING WHICH CLEARLY INDICATES THAT HE PASSED THE IMPUGNED ORDER EX - PARTE QUA THE ASSESSEE WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. HE ACCORDINGLY SUGGESTED THAT IN THE INTEREST OF JUSTICE, THE IMPUGN ED ORDER PASSED BY THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF THE AO. AS AGAINST THIS, SHRI AVINASH KUMAR , THE LD.DR APPEARED ON BEHALF OF THE REVENUE AND POINTED OUT THAT INSTEAD OF RESTORING THE APPEAL TO THE FILE OF THE A O, THE APPEAL BE ITA NO. 477/RJT/2011 3 RESTORED TO THE CIT(A) FOR DECIDING THE SAME AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 4 . HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE LD. CIT(A). IT IS PERTINENT TO NOTE THAT THE LD. CIT(A) ISSUE ONLY ONE NOTICE OF HEARING FIXING THE APPEAL ON 30.6.2010. SINCE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN PRESENTING HIS CASE BEFORE THE LD. CIT(A) ON 30.6.2010, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT( A) AND DIRECT HIM TO DECIDE THE APPEAL OF THE ASSESSEE THEREAFTER GIVING OPPORTUNITY OF BEARING HEARD TO BOTH SIDES. 5 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD SD ( . . / D. K. SRIVASTAVA) ( . . / T. K. SHARMA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / ORDER DATE 5 - 10 - 2012. /RAJKOT SRL / COPY OF O RDER FORWARDED TO: - 1. / APPELLANT - , 2. / RESPONDENT - 3. / CONCERNED CIT . 4. - / CIT (A) . 5. , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , SENIOR PRIVATE SECRETARY , TRUE COPY INCOME TAX APPELLATE TRIBUNAL, RAJKOT. ITA NO. 477/RJT/2011 4 , IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT B ENCH, RAJKOT. . . , . . , BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM ITA NO. 477/RJT/2011 / ASSESSMENT YEAR 1994 - 95 M/S GIRNAR COMPLEX, C/O RAVJIBHAI G OPALBHAI TAL.KUKAVAV, DIST, AMRELI, PAN: AAGFG6056J ( / APPELLANT) VS. ASSTT.COMMISSIONER OF INCOME TAX, JUNAGHAD. / RESPONDENT CORRIGENDUM THE TRIBUNAL VIDE ORDER DATED 5.10.2012 HAS DECIDED THIS APPEAL. THIS AP PEAL PERTAIN TO ASSESSMENT YEAR 1994 - 95. DUE TO TYPING MISTAKE IN THE TITLE OF APPEAL ASSESSMENT YEAR HAS BEEN MENTIONED AS 2007 - 08. THEREFORE, THE TITLE OF THE APPEAL INSTEAD OF ITA NO. 477/RJT/2011 / ASSESSMENT YEAR 2007 - 08 READ AS I TA NO. 477/RJT/2011 / ASSESSMENT YEAR 1994 - 95 SD SD ( . . / D. K. SRIVASTAVA) ( . . / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER / ORDER DATE 15 - 1 - 2013 /RAJKOT SRL ITA NO. 477/RJT/2011 5 / COPY OF ORDER FORWARDED TO: - 1. / APPELLANT - , 2. / RESPONDENT - 3. / CONCERNED CIT. 4. - / CIT (A). 5. , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER, TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.