Shri Nisarhusen Amadali Lakhani, Botad V. The Income Tax Officer, Ward-2(5), Bhavnagar

ITA 532/AHD/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4091 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: U S BHATI; ABHIMANYU SINGH BHATI A RS
• Keywords: Condonation of delay; Set aside
• Section: 143(3)

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD ( CONVENED THROUGH VIRTUAL COURT ) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO. 532/AHD/2018 ( ASSESSMENT YEAR : 2014-15) SHRI NISARHUSEN AMADALI LAKHANI SINDHI CHAWK, AT & POST GADHADA (SWAMINA), DIST. BOTAD-364710 / VS. INCOME TAX OFFICER WARD 2(5), BHAVNAGAR ./ ./ PAN/GIR NO. : AFCPL8937L ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI U. S. BHATI & SHRI ABHIMANYU SINGH BHATI, A.RS. / RESPONDENT BY : SHRI S. S. SHUKLA, SR.DR DATE OF HEARING 09/02/2021 !'# / DATE OF PRONOUNCEMENT 15/02/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-6, AHMEDABAD (CIT(A) IN SHORT), DATED 1 8.12.2017 ARISING IN THE ASSESSMENT ORDER DATED 28.12.2016 PA SSED BY THE ITA NO. 532/AHD/18 [SHRI NISARHUSEN A. LAKHANI VS. ITO] A.Y. 2014-15 - 2 - ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT, 1961 (THE ACT) CONCERNING AY 2014-15. 2. THE ASSESSEE IN THE CAPTIONED APPEAL HAS RAIS ED SEVERAL GROUNDS ASSAILING THE ORDER OF THE CIT(A) FOR DISMI SSAL OF THE APPEAL OF THE ASSESSEE IN LIMINE . HOWEVER, IT IS NOTICED THAT ONE OF THE SUBSTANTIVE GROUNDS RAISED BY THE ASSESSEE S EEKS TO IMPUGN THE ORDER OF THE CIT(A) TOWARDS DISMISSAL OF THE AP PEAL OF THE ASSESSEE IN CONTRAVENTION OF SECTION 250(6) OF THE ACT. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEA RNED AR FOR THE ASSESSEE, AT THE OUTSET, URGED FOR CONDONATION OF D ELAY OF 16 DAYS IN FILING APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL REFERRED TO THE AFFIDAVIT SEEKING CONDONATION OF DELAY DATED 27 TH MARCH, 2018 AND SUBMITTED THAT THE ASSESSEE DOES NOT STAND TO BENEFIT AT ALL BY SUCH DELAY AND THE SMALL DELAY DOES NOT INVO LVE ANY CULPABLE NEGLIGENCE OR MALAFIDE. HAVING REGARD TO THE SUBMISSIONS MADE, THE DELAY IS CONDONED AND THE APP EAL IS ADMITTED FOR EFFECTIVE HEARING. 4. AT THE FURTHER OUTSET, THE LEARNED COUNSEL POINT ED OUT THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE SUMMARILY FOR WANT OF PROSECUTION. IT WAS CONTENDED THAT WHILE D ISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE , THE CIT(A) HAS NOT RENDERED ANY DECISION ON THE SUBJECT MATTER OF APPEAL ON MERITS AS OBLIGATED UNDER S.250(6) OF THE ACT. IT WAS THUS URGED THAT THE ORDER OF THE CIT(A) SUFFERS FROM VIOLATION OF PRINCIPLES OF NATU RAL JUSTICE AND HENCE REQUIRES TO BE SET ASIDE FOR FRESH ADJUDICATI ON ON MERITS. ITA NO. 532/AHD/18 [SHRI NISARHUSEN A. LAKHANI VS. ITO] A.Y. 2014-15 - 3 - 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE CIT(A). 6. WE STRAIGHTWAY REFER TO SECTION 250(6) OF THE AC T WHICH ENJOINS THAT THE CIT(A) SHALL STATE THE POINTS FOR DETERMINATION BEFORE IT AND THE DECISION SHALL BE RENDERED ON SUC H POINTS ALONGWITH REASONS FOR THE DECISION. THUS, IT IS IN CUMBENT UPON THE CIT(A) TO DEAL WITH THE GROUNDS ON MERITS EVEN IN EX PARTE ORDER. IN VIEW OF SECTION 250(6) OF THE ACT, THE C IT(A) HAS NO POWER TO DISMISS AN APPEAL ON ACCOUNT OF NON-PROSEC UTION. THIS VIEW IS ALSO TAKEN BY THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT VS. PREMKUMAR ARJUNDAS LUTHRA HUF (2017) 297 CT R 614 (BOM.) . A BARE GLACE OF THE ORDER OF THE CIT(A) SHOWS TH AT CIT(A) HAS NOT ADDRESSED ITSELF ON THE VARIOUS POIN TS PLACED FOR ITS DETERMINATION AT ALL AND DISMISSED THE APPEAL O F ASSESSEE FOR DEFAULT IN NONAPPEARANCE. NEEDLESS TO SAY, THE CIT (A) PLAYS ROLE OF BOTH ADJUDICATING AUTHORITY AS WELL AS APPELLATE AUTHORITY. THUS, THE CIT(A) COULD NOT HAVE SHUNNED THE APPEAL FOR NON- COMPLIANCE WITHOUT ADDRESSING THE ISSUE ON MERITS. 7. IN THE TOTALITY OF THE CIRCUMSTANCES, WE CONSIDE R IT JUST AND EXPEDIENT TO RESTORE THE MATTER BACK TO THE CIT(A) IN THE LARGER INTEREST OF JUSTICE WITH A VIEW TO ENABLE THE ASSES SEE TO AVAIL PROPER OPPORTUNITY FOR DISPOSAL OF APPEAL BY THE CI T(A) ON VARIOUS POINTS. NEEDLESS TO SAY, THE ASSESSEE SHAL L EXTEND FULL CO- OPERATION TO THE CIT(A) WITHOUT ANY DEMUR, FAILING WHICH, THE CIT(A) SHALL AT LIBERTY TO CONCLUDE THE APPELLATE P ROCEEDINGS IN ACCORDANCE WITH LAW. HENCE, THE ORDER OF THE CIT(A ) APPEALED AGAINST, IS SET ASIDE AND ALL THE ISSUES RAISED IN THE IMPUGNED APPEAL ARE RESTORED BACK TO THE FILE OF THE CIT(A) FOR FRESH ITA NO. 532/AHD/18 [SHRI NISARHUSEN A. LAKHANI VS. ITO] A.Y. 2014-15 - 4 - ADJUDICATION IN ACCORDANCE WITH LAW AFTER GIVING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMA R KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD: DATED 15/02/2021 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED ON 15/02/2021