M/s. Mahendrakumar N.Shah, Ahmedabad V. The Dy.CIT.,Circle-3, Ahmedabad

ITA 53/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72868 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 07-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER !./ I.T.A. NO.53/AHD/2011 ( & '& & '& & '& & '& / / / / ASSESSMENT YEAR : 2007-08) M/S.MAHENDRAKUMAR N.SHAH 880/2, OPP.EMPIRE BAKERY MIRZAPUR ROAD AHMEDABAD / VS. THE DCIT CIRCLE-3 AHMEDABAD ( !./)* !./ PAN/GIR NO. : AAEFM 6795 J ( (+ / // / APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : SHRI S.N.DIVATIA ,-(+ / . / RESPONDENT BY : SHRI RAHUL KUMAR, SR.DR ' 0 / $1 / / / / DATE OF HEARING : 16/1/2014 23' / $1 / DATE OF PRONOUNCEMENT : 16/1/2014 4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) FOR SHORT) DATED 06/12/2010 PERTAINING TO ASSESSME NT YEAR (AY) 2007- 08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE ORDER OF THE LEARNED CIT(APPEALS) XVI, ABAD IS BAD IN LAW AND ON FACTS SO FAR FOLLOWING CLAIM OF EXPS. OF THE APP ELLANT NOT ALLOWED BY THE CIT(A)-XVI,BY UPHOLDING THE ORDER OF DCIT CI RCLE-3, AHMEDABAD (I) RS.11,68,759/- OUT OF INTEREST EXPENSES. (II) RS.3,39,456/- ON ACCOUNT OF UNDISCLOSED INCOME. ITA NO.53/AHD/2 011 M/S.MAHENDRAKUMAR N. SHAH VS.DCIT ASST.YEAR 2007-08 - 2 - 2. THE LEARNED CIT(APPEALS)-XVI, OUGHT TO HAVE CON SIDERED THE WRITTEN SUBMISSIONS MADE BY THE APPELLANT BEFORE DCIT CIRCL E-3 BY CALLING RECORDS AS WELL AS OUGHT TO HAVE CONSIDERED THE SUB MISSION MADE FROM TIME TO TIME BY THE APPELLANT AND OUGHT NOT TO HAVE UPHOLD THE ORDER OF THE DCIT CIRCLE-3, ABAD AND OUGHT TO HAVE ALLOWED THE CLAIM OF EXPS. MADE BY THE APPELLANT. 3. THE LEARNED CIT (APPEALS)-XIV, OUGHT TO HAVE CO NSIDERED THE WRITTEN SUBMISSIONS MADE BY THE APPELLANT BEFORE DCIT CIRCL E-3, FROM TIME TO TIME. 4. YOUR APPELLANT RESPECTFULLY SUBMITS THAT THE DI SALLOWANCES MADE BY THE DCIT, CIRCLE-3, BE ALLOWED IN FULL WHILE COMPUT ING THE TOTAL INCOME OF THE APPELLANT U/S.143(3). YOUR APPELLANT CRAVES FOR LEAVE TO ADD AND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE FINAL HEARING OF OUR APPEAL. 2. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE APPEAL HAS BEEN DECIDED BY THE LD.CIT(A) AT THE BACK OF TH E ASSESSEE. THE ASSESSEE WAS NOT AFFORDED SUFFICIENT OPPORTUNITY TO PRESENT ITS CASE. HE SUBMITTED THAT A SPECIFIC REQUEST WAS MADE BY THE A SSESSEE SEEKING ADJUDICATION VIDE LETTER DATED 17/05/2010 STATING T HEREIN THE ADJUDICATION DATE FIXED FOR HEARING ON 18/05/2010. HE SUBMITT ED THAT ON THE DATE FIXED FOR HEARING, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, WHO WAS HANDLING THE CASE, WAS ADVISED REST DUE TO HIS ILLN ESS AND REQUESTED TO ADJOURN THE CASE FOR HEARING AFTER 15 DAYS. HE PRA YED THAT THE ORDER OF THE LD.CIT(A) BE SET ASIDE AND THESE GROUNDS MAY BE RESTORED BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE APPEAL AFRESH. 3. ON THE CONTRARY, LD.DR SUPPORTED THE ORDERS OF T HE AUTHORITIES BELOW. ITA NO.53/AHD/2 011 M/S.MAHENDRAKUMAR N. SHAH VS.DCIT ASST.YEAR 2007-08 - 3 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT LD.CIT(A) HAS RECORDED HIS FINDING VID E PARAS-1 & 1.2 OF HIS ORDER, AS UNDER:- THE APPEAL HAS BEEN FILED ON 07/01/2010 AGAINST TH E AOS ORDER DATED 24/12/2009 PASSED UNDER SECTION 143(3). THE APPEAL IS IN TIME. IN RESPONSE TO THE APPEAL NOTICE NOBODY ATTE NDED. THE STATUS OF APPEAL NOTICES IS AS UNDER:- SR.NO. DATE OF APPEAL NOTICE/DATE OF HEARING DATE OF ADJOURNMENT/NO ATTENDANCE/REMARKS 1. 15-4-2010/18-5-2010 ADJOURNMENT LETTER FILED ON 18-5- 2010. CASE REFIXED ON 22-6- 2010. 2. 22-6-2010 ADJOURNMENT LETTER FILED ON 22-6-2010. CASE REFIXED ON 19-9- 2010 3. 12-10-2010/25-10-10 ADJOURNMENT LETTER FILED ON 25-10-2010. CASE REFIXED ON 18-11- 2010. 4. 18-11-2010 ADJOURNMENT LETTER FILED ON 18-11-2010. CASE REFIXED ON 6-12- 2010 1.2. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. THE APPEAL IS THEREFORE DE CIDED AS PER MATERIAL AVAILABLE ON RECORD. THERE ARE FOUR GROUN DS OF APPEAL, ALL BEING COMMON ON THE ISSUE OF DISALLOWANCE OF RS .11,68,759/- OUT OF INTEREST EXPENSES AND ADDITION OF RS.339456/ - ON ACCOUNT OF UNDISCLOSED INCOME ARE TAKEN TOGETHER AS ALL THE GR OUNDS ARE MIXED UP IN RESPECT OF THESE TWO ADDITIONS/DISALLOW ANCES. ITA NO.53/AHD/2 011 M/S.MAHENDRAKUMAR N. SHAH VS.DCIT ASST.YEAR 2007-08 - 4 - 4.2. WE FIND THAT IN PARA-1.2, THE LD.CIT(A) CAME T O THE CONCLUSION THAT THE ASSESSEE WAS NOT INTERESTED IN PURSUING THE APP EAL. THEREFORE, HE PROCEEDED TO DECIDE THE APPEAL ON THE MATERIAL AVAI LABLE ON RECORD. 5. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND THE SUBMISSIONS MADE BY THE LD.COUNSEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY OF HEARING BE GIVEN TO THE ASSESSEE. T HEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER PASSED BY THE LD.CIT(A) IS HE REBY SET ASIDE AND THE APPEAL IS RESTORED BACK TO HIS FILE TO DECIDE IT AF RESH, AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE ALL THE DETAILS BEFORE THE LD.CIT(A) ON OR BEF ORE 07/02/2014 . THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD.C IT(A) FOR HEARING ON 07/02/2014. THE LD.CIT(A) IS FURTHER DIRECTED TO D ISPOSE OF THE ASSESSEES APPEAL ON OR BEFORE 28/02/2014 . SINCE BOTH THE REPRESENTATIVES OF THE PARTIES HAVE BEEN INFORMED T HE DATE OF HEARING BEFORE THE LD.CIT(A) IN OPEN COURT, NO NEED TO ISSU E ANY NOTICE OF HEARING AND THE ASSESSEE IS AT LIBERTY TO SERVE THE COPY OF THIS ORDER BEFORE THE LD.CIT(A) ON OR BEFORE 07/02/2014. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED AS P ER THE DIRECTIONS STATED ABOVE. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 16/ 01/2014 71.., .../ T.C. NAIR, SR. PS ITA NO.53/AHD/2 011 M/S.MAHENDRAKUMAR N. SHAH VS.DCIT ASST.YEAR 2007-08 - 5 - 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$ 4 / ,$8 98'$/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. !! $ ': / CONCERNED CIT 4. ':() / THE CIT(A)-XVI, AHMEDABAD 5. 8 #; ,$ , , / DR, ITAT, AHMEDABAD 6. ;<& =0 / GUARD FILE. 4' 4' 4' 4' / BY ORDER, -8$ ,$ //TRUE COPY// > >> >/ // / !) !) !) !) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 16.1.14(DICTATION-PAD 6 PAGE S ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.1.14 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 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.20.1.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.1.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER