Shri Ashwinbhai A. Ashwar, JAMNAGAR V. The Income Tax Officer, Ward-2(1), JAMNAGAR

ITA 591/RJT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0120 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA N SHROTE
• Assessee Lawyers: CHETAN L AGARWAL
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER. ITA NOS.589, 590 & 591/RJT/2014 (ASSESSMENT YEAR:2009-10) SHRI ASHWINBHAI A. ASHWAR PROP. OF M/S. KESHAV ENTERPRISE, NR. JANTA GUEST HOUSE, BEDI GATE, JAMNAGAR APP ELLANT VS. SHRI B M ACHARYA, INCOME TAX OFFICER, WARD 2(1), JAMNAGAR RESPON DENT PAN: AGJPA2899Q /BY ASSESSEE : SHRI CHETAN L. AGARWAL, A.R. /BY REVENUE : SMT. USHA N. SHROTE, SR. D.R. /DATE OF HEARING : 03.10.2016 /DATE OF PRONOUNCEMENT : 17.10.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THESE THREE ASSESSEES APPEALS FOR A.YS.2009-10 ARI SE FROM SEPARATE ORDERS OF THE CIT(A), JAMNAGAR, ALL DATED 14.08.20 14, IN CASE NOS. CIT(A) /JAM/99/13-14/55/, CIT(A) /JAM/100/13-14/55/ & CIT( A) /JAM/101/13- ITA NOS.589 TO 591/RJT/2014 SHRI ASHWINBHAI A. ASHW AR VS. SHRI B M ACHARYA, ITO) A.Y. 2009-10 - 2 - 14/55/; RESPECTIVELY, IN PROCEEDINGS U/S.143(3), 27 1(1)(C) AND 271(1)(B) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. A COMBINED PERUSAL OF THESE CASE FILES REVEALS T HAT THE CIT(A)S ALL THREE ORDERS UNDER CHALLENGE BEFORE US REJECT ASSES SEES APPEALS ON THE GROUND THAT THE SAME ARE TIME BARRED BY DELAY OF 19 MOTHS, 13 MONTHS AND 23 DAYS IN FILING THEREOF. THESE CASE FILES REVEAL THAT THE A SSESSING OFFICER FRAMED AN EX PARTE ASSESSMENT ON 15.11.2011 MAKING QUANTUM ADDIT ION OF RS.16,78,768/- ON ACCOUNT OF GROSS PROFITS ESTIMATION @ 5% ON TRAN SPORT RECEIPTS OF RS.3,35,75,370/- FOLLOWED BY SECTION 271(1)(C) PENA LTY IMPOSED ON 25.06.2012 AND FURTHER LEVIED SECTION 271(1)(B) PEN ALTY OF RS.40,000/- VIDE ORDER OF EVEN DATE. THE ASSESSE FILED SEPARATE APP EALS IN ALL CASES ON 21.08.2013 BEFORE THE CIT(A). HIS CASE WAS THAT HE HAD HANDED OVER ALL SCRUTINY NOTICES FOR COMPLIANCE. HE FURTHER PLEADE D IN CONDONATION PETITION THAT HE WAS NEVER AWARE OF THE ABOVE THREE EX PARTE ORDERS OF THE ASSESSING OFFICER. THE CIT(A) IN HIS ALL THREE ORDERS UNDER CHALLENGE IS OF THE OPINION THAT THESE AVERMENTS ARE TOO GENERAL IN NATURE TO D ISMISS THESE THREE ASSESSEES CASES IN LIMINE. 3. WE HAVE HEARD BOTH SIDES REITERATING THEIR RESPE CTIVE STANDS. THERE IS HARDLY ANY DISPUTE THAT THE ASSESSEE FILED ALL THRE E APPEALS BEFORE THE CIT(A) ON THE SAME DAY CAUSING DELAY OF 19 MONTHS, 13 MONT HS AND 23 DAYS; RESPECTIVELY. HIS CONDONATION AFFIDAVIT DULY VERIF IED STATED THAT HIS AUTHORIZED REPRESENTATIVE DID NOT APPEAR IN ALL OF THE ASSESSING OFFICERS PROCEEDINGS IN QUESTION FORMING THE SOLE REASON OF LACK OF HIS KNOWLEDGE QUA THE ORDERS UNDER CHALLENGE. WE NOTICE THAT NEITHER THE CIT(A) HAS ASKED HIM TO SPECIFY NAME OF THE REPRESENTATIVE NOR HAS HE HI MSELF COMMENTED ON VERACITY THEREOF THEREBY TREATING ALL THESE AVERMEN TS IN AFFIDAVIT TO BE OF MERE GENERAL IN NATURE. WE ARE UNABLE TO AGREE WITH THI S APPROACH IN ABSENCE OF ITA NOS.589 TO 591/RJT/2014 SHRI ASHWINBHAI A. ASHW AR VS. SHRI B M ACHARYA, ITO) A.Y. 2009-10 - 3 - ANY REASONING IN SUPPORT OF THIS GENERAL OPINION. WE THUS DEEM IT APPROPRIATE IN THE LARGER INTEREST OF JUSTICE TO CO NDONE THE ABOVE STATED DELAY OF 19 MONTHS, 13 MONTHS AND 23 DAYS IN FILING OF AS SESSEES APPEALS BEFORE THE LOWER APPELLATE AUTHORITY AND DIRECT IT TO DECI DE ALL THESE THREE ASSESSEES APPEALS ON MERITS IN ACCORDANCE WITH LAW AFTER AFFO RDING ADEQUATE OPPORTUNITY OF HEARING. 4. THESE THREE ASSESSEES APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 17 TH DAY OF OCTOBER, 2016.] SD/- SD/- (AMARJIT SINGH) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 17/10/2016 TRUE COPY S.K.SINHA 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, RAJKOT