Shyamratan Sitaram Kedia, Surat V. Income Tax Officer, Ward-1(2)(4), Surat

ITA 531/SRT/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1948 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 26-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAMESH KUMAR MA LPANI
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.153/SRT/2017 & 531/SRT/2018 / ASSESSMENT YEARS: 2013-14 & 2014-15 SHRI SHYAMRATAN SITARAM KEDIA, 7-C, RAVITEJ APARTMENT, NEAR INDOOR STADIUM, ATHWALINES, SURAT. [PAN: ABGPK 3825L] VS. INCOME TAX OFFICER, WARD-1(2)(4), SURAT. ( ' / APPELLANT) ( #$' /RESPONDENT) / ASSESSEE BY : SHRI RAMESH KUMAR MALPANI, C.A /REVENUE BY : SHRI DILEEP KUMAR, SR. D.R /DATE OF HEARING : 11-10-2018 / DATE OF PRONOUNCEMENT : 16-10-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPE ALS)-2, SURAT (CIT(A) FOR SHORT) DATED 24.08.2017 & 17.05.2018 FOR THE ASSESSMENT YEARS (A.YS) 2013-14 & 2014-15 RESPECTIVELY. 2. AS AGREED BY BOTH THE PARTIES FACTS AND CIRCUMST ANCES OF BOTH THE APPEALS ARE IDENTICAL AND SIMILAR FOR THE SAKE OF C ONVENIENCE AND BREVITY, 2 ITA NOS.153/SRT/2017 & 531/SRT/2018 (A.YS: 2013-14 & 2014-15) SHRI SHYAMRATAN SITARAM KEDIA WE ARE TAKING APPEAL FOR AY 2013-14 AS LEAD CASE. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO.153/SRT/2017 FOR AY 2013- 14 READ AS FOLLOWS: 1. THAT THE EX-PARTE APPEAL ORDER PASSED BY ID. C.I .T.(A) IS WRONG AND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT HEARING THE APPELLANT. 2. THAT THE EX-PARTE APPEAL ORDER PASSED BY ID. CIT (A) IS WRONG AND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT CONSIDERING THE SUBMISSION AND CONTENTIONS OF THE A PPELLANT FURNISHED IN THE FORM OF 'STATEMENT OF FACTS' ALONG WITH THE APPEAL. 3. THAT THE EX-PARTE APPEAL ORDER PASSED BY ID. CIT (A) DISMISSING THE APPEAL OF THE APPELLANT AS UN ADMITTED IS WRONG AND BAD-IN- LAW AS THE SAME HAS BEEN PASSED WITHOUT DECIDING TH E VARIOUS GROUNDS OF APPEAL ON MERITS ON THE BASIS OF MATERIA L AVAILABLE ON RECORD, STATEMENT OF FACTS AND GROUNDS OF APPEAL . 4. WITHOUT PREJUDICE TO OTHER GROUNDS OF APPEAL, TH AT THE ID. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING T HE ADDITION OF RS. 25,16,723/- U/S. 68 OF THE ACT, BY DISMISSIN G THE APPEAL OF THE APPELLANT ON EX-PARTE BASIS. 5. WITHOUT PREJUDICE TO OTHER GROUNDS OF APPEAL, TH AT THE ID. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING T HE ADDITION OF RS. 54,000/- BY TREATING THE LOANS AND ADVANCES GIVEN AS UNEXPLAINED INCOME, BY WAY OF DISMISSING THE APPEAL OF THE APPELLANT ON EX-PARTE BASIS. 6. THAT THE ID. CIT(A) HAS ERRED IN UPHOLDING THE C HARGING INTEREST U/S. 234B OF THE ACT, BY WAY OF DISMISSING THE APPE AL OF THE APPELLANT ON EX-PARTE BASIS. GROUNDS NO.1 TO 3: 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE L D. CIT(A) WAS WRONG AND INCORRECT IN PASSING EX-PARTE ORDER AND DISMISS ING THE APPEAL OF THE ASSESSEE EX-PARTE ON THE ALLEGATION OF NON-PROSECUT ION WITHOUT 3 ITA NOS.153/SRT/2017 & 531/SRT/2018 (A.YS: 2013-14 & 2014-15) SHRI SHYAMRATAN SITARAM KEDIA ADJUDICATING THE GROUNDS RAISED BY THE ASSESSEE IN FORM NO.35. THE LD. AR FURTHER SUBMITTED THAT THE ID. CIT(A) IS WRONG A ND BAD-IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT CONSIDERING THE SUBMIS SION AND CONTENTIONS OF THE APPELLANT FURNISHED IN THE FORM OF 'STATEMENT OF FACTS' ALONG WITH THE APPEAL AND THE EX-PARTE APPEAL ORDER PASSED BY ID. CIT(A) DISMISSING THE APPEAL OF THE APPELLANT AS UN ADMITT ED IS WRONG AND BAD- IN-LAW AS THE SAME HAS BEEN PASSED WITHOUT DECIDING THE VARIOUS GROUNDS OF APPEAL ON MERITS ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD, STATEMENT OF FACTS AND GROUNDS OF APPEAL. 4. THE LD. AR SUBMITTED THAT THE ASSESSEE IS SUFFER ING WITH SEVERE KIDNEY PROBLEM AND HE WAS UNDERWENT A LIVE DONOR RE NAL TRANSPLANTATION UNDER OUR CARE ON 07.06.2015 AND TWO YEARS BEFORE A ND ALMOST TWO YEARS AFTER HE WAS UNDER MEDICAL TREATMENT FOR THIS DECEA SE. THE LD. AR SUBMITTED THAT BEFORE AND AFTER KIDNEY TRANSPLANT T HE ASSESSEE WAS SUFFERING WITH SEVERE PROBLEMS FOR THAT HE WAS ADMI TTED TO HOSPITAL SEVERAL TIMES AND ALSO UNDERGONE DIAGNOSIS BEFORE T HE SURGERY AND AFTER TRANSPLANT HE HAD TO STAY IN A HYGIENIC ATMOSPHERE TO AVOID INFECTIONS AND FAILURE OF KIDNEY TRANSPLANT OPERATION AND FOR THIS PURPOSE HE STAYED ISOLATED AND CONFINED TO HIS BED ROOM ONLY FOR ONE YEAR AFTER THE KIDNEY TRANSPLANT. THE LD. AR SUBMITTED THAT THESE ARE THE REASONS WHICH PREVENTED THE ASSESSEE FROM PURSUING ASSESSMENT AND FIRST APPELLATE 4 ITA NOS.153/SRT/2017 & 531/SRT/2018 (A.YS: 2013-14 & 2014-15) SHRI SHYAMRATAN SITARAM KEDIA PROCEEDINGS BEFORE THE AUTHORITIES BELOW THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED AND CORRECT IN PASSING EX-PARTE ORDER AND DISMISSING APPEAL OF THE ASSESSEE EX-PARTE WITHOUT ADJUDICATING THE GROU NDS OF THE ASSESSEE ON MERITS. THE LD. AR SUBMITTED THAT THE APPEAL MA Y KINDLY BE RESTORED EITHER TO THE FILE OF AO OR TO THE FILE LD. CIT(A) FOR A FRESH ADJUDICATION. 5. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) SUBMITTED THAT WHEN THE ASSESSEE IS NOT COOPERATING WITH THE PROCEEDINGS THEN, THE LD. CIT(A) HAS NO OPTION BUT TO DISMISS A PPEAL EXPARTILY. HOWEVER, IN FAIRNESS, HE SUBMITTED THAT THE AO HAS PASSED DETAILED ORDER AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE AS SESSEE. THEREFORE, IF IT IS FOUND NECESSARY, JUST AND PROPER THEN, THE CASE MAY BE RESORTED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF APPEAL O N MERITS. 6. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, FIRST OF ALL, WE MAY POINT OUT THAT FROM THE MEDICAL DOCUMENTS SUBMI TTED BY THE ASSESSEE, IT IS VIVID THAT THE ASSESSEE UNDERWENT K IDNEY TRANSPLANT OPERATION ON 07.06.2015 AT LANKA HOSPITAL, COLOMBO. OBVIOUSLY, BEFORE KIDNEY TRANSPLANT A PATIENT HAS TO SUFFER A LOT DUR ING TREATMENT AND DIALYSIS PROCEDURE AND AFTER TRANSPLANT HE IS BOUND TO STAY IN A HYGIENIC AND LONELY POSITION FOR A LONG TIME TO AVOID FURTHER INFECTION S AND FAILURE OF OPERATION. IN THIS SITUATION, PRIOR TO ONE OR TWO YEARS FROM T HE DATE OF OPERATION I.E., 07.06.2015 AND SUBSEQUENT TO OPERATION THE ASSESSEE HAD TO STAY ALONE 5 ITA NOS.153/SRT/2017 & 531/SRT/2018 (A.YS: 2013-14 & 2014-15) SHRI SHYAMRATAN SITARAM KEDIA TO AVOID INFECTIONS FOR COUPLE OF YEARS. THE ASSESS MENT ORDER FOR AY 2013-14 HAS BEEN PASSED ON 22.04.2016 AND THE LD. C IT(A) DISMISSED APPEAL ON 24.08.2017, WHEREAS FOR AY 2014-15 THE AS SESSMENT ORDER WAS PASSED ON 20.01.2017 AND LD. CIT(A) DISMISSED A PPEAL ON 17.05.2018 WHICH IS SURROUNDING PERIOD OF SURGERY W HICH WAS HELD ON 07.06.2015. IN VIEW OF ABOVE, WE ARE OF THE CONSID ERED OPINION THAT THE LD. AO PASSED IMPUGNED ASSESSMENT ORDERS AFTER ALLO WING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE, WHEREAS THE LD. CIT(A) DISMISSED BOTH THE APPEALS EXPARTILY ON THE ALLEGATION OF NON -PROSECUTION WITHOUT ADJUDICATING THE SAME ON MERITS. THEREFORE, KEEPIN G IN VIEW THE MEDICAL PAPERS SUBMITTED BY THE ASSESSEE, WE ARE SATISFIED THAT DUE TO HEALTH PROBLEMS, THE ASSESSEE COULD NOT ATTEND PROCEEDINGS BEFORE LD. CIT(A) DUE TO MEDICAL REASONS WHICH WERE BEYOND CONTROL OF THE ASSESSEE HENCE, WE FIND IT APPROPRIATE, AND NECESSARY TO RES TORE THE CASE TO THE FILE OF THE LD. CIT(A) TO THE FIRST APPELLATE STAGE FOR ADJUDICATION ON MERITS AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND WITHOUT BEING PREJUDICED FROM THE IMPUGNED FIRST APPELLATE ORDER. SINCE, FACTS AND CIRCUMSTANCES OF BOTH THE APPEALS ARE IDENTICAL AND SIMILAR THEREFORE, OUR CONCLUSION NOTED FOR AY 2013-14 WOULD APPLY MUTATIS MUTANDIS TO AY 2014-15 ALSO AND GROUND NOS. 1 TO 3 OF THIS APPEAL ARE ALSO ALLOWED AND THIS APPEAL IS ALSO RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION ON MERITS. ACCORDINGLY, APPEALS ARE ALLOWED FOR STATIS TICAL PURPOSES ON 6 ITA NOS.153/SRT/2017 & 531/SRT/2018 (A.YS: 2013-14 & 2014-15) SHRI SHYAMRATAN SITARAM KEDIA GROUND NOS. 1 TO 3 AND RESTORED TO THE FILE OF THE LD. CIT(A) TO FIRST APPELLATE STAGE. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 6 TH OCTOBER, 2018 / SURAT ; DATED : 16 TH OCTOBER, 2018 EDN # & / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT ; 3. $ ( ) / THE CONCERNED CIT(A); 4. THE CONCERNED PRL. CIT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE . SD/- SD/- ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER