Shri Chandrakant Kothari, Vaisai East, Maharashtra V. Asstt. Commissioner of Income Tax (CPC), Bangalore

ITA 514/LKW/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1132 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHARAT AWASTHI
• Assessee Lawyers: CHANDRAKANT KOTHARI
• Keywords: Rectification of order; Opportunity of being heard
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW SMC BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 514/LKW/2017 ASSESSMENT YEAR: 2009 - 10 SHRI CHANDRAKANT KOTHARI B - 502, INDRAPRASTH TOWER VASANT NAGAR, VASIA EAST MAHARASHTRA V. ACIT (CPC) BANGALORE PAN: AAXPK3601J (APPELLANT) (RESPONDENT) APPELLANT BY: CHANDRAKANT KOTHARI RESPONDENT BY: SHRI BHARAT AWASTHI, D.R. DATE OF HEARING: 15 02 2018 DATE OF PRONOUNCEMENT: 16 02 2018 O R D E R THIS APPEAL IS PREFERRED BY THE A SSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: - THE APPELLATE ORDER, WHEREBY LEARNED C.I.T.(A) HAS SUSTAINED THE RECTIFICATION ORDER IMPUGNED BEFORE HIM IS ILLEGAL, UNWARRANTED, UNJUSTIFIED AND AS THUS DESERVES TO BE QUASHED UNDER LAW IN THE FACTS AND CIRCUMSTANCES OF THE CASE BECAUSE: - (1) LEARNED C.I.T .(A) WAS NOT JUSTIFIED IN CONFIRMING THE RECTIFICATION ORDER PASSED U/S 154 OF THE INCOME TAX ACT, 1961 ON EX PARTE BASIS UNDER LAW IN THE FACTS AND CIRCUMSTANCES OF THE CASE. IN ANY CASE AND WITHOUT PREJUDICE (2) (A) LEARNED CIT (A) HAS FAILED TO APPRECIATE THAT LEARNED AO, WHILE CALCULATING GROSS TOTAL INCOME OF RS. 5,39,781 HAS FAILED TO APPRECIATE THAT THE LONG TERM CAPITAL GAIN OF RS. 2,38,811 WAS ADDED TWICE WHILE CA LCULATING THE SAME. (B) IN ANY CASE AND WITHOUT PREJUDICE THE LEARNED CIT(A) HAD FAILED TO APPRECIATE THAT GROSS TOTAL INCOME OF APPELLANT IS RS. 3,00,970 INSTEAD OF RS 5,39,781. ITA NO.514/LKW/2017 : - 2 - : (3) IN ANY CASE AND WITHOUT PREJUDICE SUSTENANCE OF APPELLANT'S APPLICATION U /S 154 HAS BEEN DONE WITHOUT ANY REASON AND WITHOUT APPRECIATING THAT ORDER U/S 154 WAS MADE WITHOUT ANY OPPORTUNITY OF BEING HEARD AND AS SUCH IT IS AGAINST THE PROVISIONS OF SECTION 154 (3). 2 . DURING THE COURSE OF HEARING, THE LD. A.R. OF THE ASSESSEE HAS INVITED MY ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE CONTENTION THAT THE LD. CIT(A) HAS PASSED EX - PARTE ORDER WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR RE - ADJU DICATION OF THE APPEAL. 3 . THE LD. D.R. HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) VIS - - VIS THE GROUNDS OF APPEAL RAISED BEFORE ME, I FIND THAT THOUGH THE LD. CIT(A) HAS RECORDED CERTAIN DATES OF HEARING IN HIS ORDER BUT IT IS NOT CLEAR FROM HIS ORDER WHETHER NOTICE OF HEARING WAS EVER SERVED UPON THE ASSESSEE. SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HARD TO THE ASSESSEE, I SET ASIDE HIS ORDER AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUES RAISED BEFORE HIM AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RE SULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION ED PAGE. SD/ - [ S UNIL KUMAR Y ADAV ] JUDICIAL MEMBER DATED: 16 TH FEBRUARY , 201 8 JJ: 1502 ITA NO.514/LKW/2017 : - 3 - : COPY FORWARDED TO : 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR