Shri Rajiv Laxman Dalal, Ahmedabad V. The ACIT.,(OSD)Circle-10, Ahmedabad

ITA 53/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94336 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Principle of natural justice; Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) I.T. A. NO. 53/AHD/2012 (ASSESSMENT YEAR: 2008-09) SHRI RAJIV LAXMAN DALAL AAGAM, B/H. APANG MANAV MANDAL NAVRANGPURA, AHMEDABAD-380015 V/S ACIT (OSD) CIRCLE-10, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABHPD 5148C APPELLANT BY : SHRI TUSHAR P. HEMANI, A.R . RESPONDENT BY : SHRI NARENDRA SINGH, SR. D.R . ( )/ ORDER DATE OF HEARING : 27-08-2015 DATE OF PRONOUNCEMENT : 04 -09-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XVI, AHMEDABAD DATED 05.10.2011 FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE DERIVING INC OME FROM SALARY, HOUSE PROPERTY, CAPITAL GAINS AND INCOME FROM OTHER SOURC ES. ASSESSEE FILED HIS ITA NO 53/AH D/2012 . A.Y. 2008-09 2 RETURN OF INCOME FOR A.Y. 2008-09 ON 28.08.2008 DEC LARING TOTAL INCOME AT RS. 17,51,270/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORD ER DATED 16.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 19,29,96 0/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO VIDE ORDER DATED 05.10.2011DISMISSED THE APPEAL OF THE ASSESSE E. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED CIT(A) IS BAD IN LAW AN D AGAINST THE PRINCIPLES OF NATURAL JUSTICES. YOUR APPELLANT SUBMITS THAT THE S AID ORDER BE QUASHED. 2. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN PASSI NG AN EX-PARTE ORDER WITHOUT GIVING ANY COGENT REASON. IT IS SUBMITTED THAT THE LEARNED CIT(A) SHOULD HAVE GIVEN AN OPPORTUNITY BEFORE PASSING SUCH AN EX-PART E ORDER. YOUR APPELLANT SUBMITS THAT THE ORDER OF LEARNED CIT(A) BE QUASHED . 3. WITHOUT PREJUDICE TO THE ABOVE YOUR APPELLANT SU BMITS THAT THE LEARNED CIT(A) SHOULD HAVE ISSUED ANOTHER NOTICES AS THE REPRESENT ATIVE DID NOT ATTENDED EARLIER DUE TO NON RECEIPT OF NOTICE AT THE OFFICE OF THE AUTHORIZED REPRESENTATIVE AND FOR SECOND NOTICE HE COULD NOT A TTEND ON 28.09.2011 DUE TO HEAVY RUSH OF FILLING RETURNS IN LAST DAYS. YOUR APPELLANT THEREFORE SUBMITS THAT SUCH ORDER BE QUASHED AS IT IS AGAINST THE PRI NCIPLES OF NATURAL JUSTICE. 4. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT(A) S HOULD NOT HAVE ACCEPTED THE ADDITION OF RS.178685/- BEING (I) DEEMED RENT AS PER PARA 4 OF THE ASSESSMENT ORDER FOR RS.150000/-, (II) DISALLOWANCE OF STT EXPENSE AS PER PARA 5 OF THE ASSESSMENT ORDER FOR RS.28685/-. THE SAID ADDITIONS ARE MADE BY LEARNED A.O. WITHOUT GOING INTO THE FACTS A ND LEARNED CIT(A) SHOULD HAVE DECIDE THE ISSUE ON MERITS OF THE FACTS. THE L EARNED CIT(A) SHOULD HAVE ASKED FURTHER DETAILS BY ISSUING ANOTHER NOTICE FOR SUCH ADDITIONS AND SHOULD NOT HAVE PROCEEDED TO PASS AN EX-PARTE ORDER. YOUR APPELLANT RESPECTFULLY SUBMITS THAT THE ACTION OF LEARNED CIT(A) FOR PASSI NG AN EX-PARTE ORDER WHOLLY ITA NO 53/AH D/2012 . A.Y. 2008-09 3 UNJUSTIFIED AND AGAINST THE PRINCIPLES OF THE NATUR AL JUSTICE. YOUR APPELLANT THEREFORE REQUEST TO QUASH THE ORDER OF CIT(A) . 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT L D. CIT(A) HAS PASSED AN EX- PARTE ORDER WITHOUT GIVING ANY COGENT REASONS. HE S UBMITTED THAT ON THE DATE OF HEARING THE REPRESENTATIVE OF THE ASSESSEE COULD NOT APPEAR BEFORE CIT(A) AND ATTEND THE HEARING ON 29.09.2011 AS HE WAS BUSY WITH THE FILING OF RETURNS OF INCOME. HE THEREFORE SUBMITTED THAT THER E WAS A GENUINE AND REASONABLE CAUSE FOR NOT ATTENDING THE HEARING BEFO RE LD. CIT(A) AND THAT THE ASSESSEE BE GRANTED ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE LD. CIT(A) AND FURTHER SUBMITTED THAT ASSESSEE WILL FUL LY CO-OPERATE AND APPEAR BEFORE LD. CIT(A). THE LD. D.R. ON THE OTHER HAND O PPOSED THE PRAYER OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, WE FIND THAT LD. CIT(A) HAS PASSE D AN EX-PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE ISSUE BEFORE HIM. IT IS A SETTLED LAW THAT LD. CIT( A) HAS NO JURISDICTION TO DISMISS THE APPEAL OF THE ASSESSEE WITHOUT GOING IN TO THE MERITS OF THE ISSUE BEFORE HIM. EVEN IN AN EX PARTE ORDER THE LD. CIT(A ) SHOULD HAVE DECIDED THE GROUNDS OF APPEAL OF THE ASSESSEE ON MERITS THEREOF . CONSIDERING THE AFORESAID FACTS, WE ARE OF THE VIEW THAT IN THE INT EREST OF JUSTICE AND FAIR PLAY, THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PRESE NT HIS CASE BEFORE LD. CIT(A). WE THEREFORE REMIT THE ISSUE BACK TO LD. CI T(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE P ARTIES. IN VIEW OF OUR DECISION TO RESTORE THE ISSUE TO LD. CIT(A), WE ARE NOT ADJUDICATING ON MERITS ITA NO 53/AH D/2012 . A.Y. 2008-09 4 THE OTHER GROUNDS OF THE APPEAL RAISED BY THE ASSES SEE. THUS THE GROUND OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 04- 09 - 2015. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMED ABAD