Shri Mahendra J.Pandya, Surat V. The Income tax Officer,Ward-2(4), Surat

ITA 598/AHD/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2093 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA SR D R
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI, PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.598/AHD/2013 ASSESSMENT YEAR :2008-09 MAHENDRABHAI J PANDYA 8/612, DAXINI STREET, MAIN ROAD, NAVSARI BAZAR, SURAT -395003 [ PAN NO. AHVPP 1943 M ] V/S . INCOME TAX OFFICER, WARD-2(4), SURAT / APPELLANT .. / RESPONDENT) /BY APPELLANT NONE /BY RESPONDENT SHRI Y.P. VERMA, SR-DR /DATE OF HEARING 02-05-2013 /DATE OF PRONOUNCEMENT 10-05-2013 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF ASSESSEE IS DIRECTED AGAINST THE OR DER OF COMMISSIONER OF INCOME-TAX (APPEALS)-II, SURAT (CIT(A) FOR SHO RT) DATED 11-01-2013 FOR THE ASSESSMENT YEAR (AY) 2008-09. THE ASSESSEE HAS RAIS ED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE HONBLE CIT(A) HAS ERRED IN LAW AND ON FACT S IN DISMISSING THE APPEAL FILED BY THE APPELLANT AGAINST THE ASSESSMEN T ORDER U/S. 143(3) PASSED BY THE LD. ASSESSING OFFICER IN WHICH ADDITI ON WAS MADE OF RS.3,47,861/- HOLDING THAT THE ?LIC AGENT APPELLANT HAS NOT INTERESTED IN PURSUING THE APPEAL AS THE APPELLANT HAS NEITHER ATTENDED THE OFFICE OF THE HONBLE CIT(A) NOR FIELD ADJOURNMENT LETTER ON THE DAY OF HEARING OF APPEAL. ITA NO.598/AHD/2013 A.Y. 2008-09 MAHENDRABHAI J PANDYA V. ITO WD-2(4) SRT PAGE 2 2. THE HOBLE CIT(A) HAS ALSO ERRED IN LAW AND ON F ACTS IN MENTIONING IN THE APPELLATE ORDER THAT THE APPEAL IS DECIDED WITH OUT CONSIDERING THE DOCUMENTS ON RECORD, AS PER HIS OFFICE NOTICE DATED 03-01-2013. IT IS ALWAYS WRITTEN IN THE HEARING NOTICE THAT IF THE AP PELLANT DOES NOT WISH TO APPEAR HE MAY BE FILED WRITTEN SUB MISSION. HERE, I N THIS CASE THE WRITTEN SUBMISSION IS IN THE FORM OF STATEMENT OF F ACTS HAS ALREADY BEEN SUBMITTED ALONG WITH THE GROUNDS OF APPEAL AT THE T IME OF FILING APPEAL. THIS DEEMED WRITTEN SUBMISSION SHOULD HAVE BEEN CON SIDERED BY THE HONBLE CIT(A). ALL THE FACTS ARE NARRATED IN THE R EPLIES IN COMPLIANCE OF THE NOTICES ISSUED BY THE LD. ASSESSING OFFICER. TH IS FACTS HAVE BEEN DISCUSSED IN THE BODY OF THE ASSESSMENT ORDER. AS A PRINCIPLE OF NATURAL JUSTICE THE HONBLE CIT(A) SHOULD HAVE DECIDED THE APPEAL ON MERITS ON THE BASIS OF DOCUMENTS AVAILABLE ON RECORD. 3. THE HONBLE CIT(A) HAS ALSO ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL AND BY THAT WAY HE HAS CONFIRMED THE TWO ADDITIONS, VIZ., OUT OF SALARY EXPENSES OF RS.164,000/- AND ON ACCOUNT O F LOW NP OF RS.1,83,861/- (IN TOTAL RS.3,47,861/-). IN THE CASE OF LIC AGENT GP AND NP ADDITION IS NOT DESIRABLE. IT IS PRAYED THAT BOT H THE ADDITION MAY KINDLY BE DELETED. 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL IS ENGAGED IN THE BUSINESS OF LIC AGENCY EARNING COMMISSION FROM LIC AND INTEREST ON SAVING ACCOUNT. THE CASE OF ASSESSEE WAS PICKED UP FOR SCR UTINY ASSESSMENT AND THE ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED THEREBY THE ASSESSING O FFICER MADE ADDITION ON ACCOUNT OF DISALLOWANCE OF SALARY EXPENDITURE AND L OW NET PROFIT (NP). AGAINST THIS, ASSESSEE FIELD APPEAL BEFORE LD. CIT(A) WHO D ISMISSED THE APPEAL IN ABSENCE OF ASSESSEE ON THE GROUND THAT ASSESSEE DID NOT ATTEND THE HEARING ON THE DATE FIXED. 3. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A) ASSES SEE PREFERRED SECOND APPEAL BEFORE US. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE THEREFOR E THE APPEAL WAS TAKEN UP FOR HEARING IN THE ABSENCE OF ASSESSEE. LD . SR-DR OF THE REVENUE SUBMITTED THAT BEFORE LD. CIT(A), ALSO ASSESSEE DID NOT ATTEND HEARING AND HE ITA NO.598/AHD/2013 A.Y. 2008-09 MAHENDRABHAI J PANDYA V. ITO WD-2(4) SRT PAGE 3 SUBMITTED THAT ON THE GROUND OF NON-APPEARANCE OF A SSESSEE BEFORE THIS TRIBUNAL THE PRESENT APPEAL MAY ALSO BE DISMISSED. 5. WE HAVE HEARD LD. SR-DR AND PERUSED THE MATERIAL S AVAILABLE ON RECORD. WE FIND THAT THE GRIEVANCE OF ASSESSEE IS T HAT LD. CIT(A) ERRED IN OBSERVING THAT ASSESSEE IS NOT INTERESTED IN PURSUI NG ITS APPEAL. ANOTHER GRIEVANCE OF THE ASSESSEE IS THAT WRITTEN SUBMISSIO N IN THE FORM OF STATEMENTS OF FACT HAD ALREADY BEEN SUBMITTED BEFORE LD. CIT(A ) AND LD. CIT(A) OUGHT TO HAVE DECIDED THE APPEAL AFTER CONSIDERING THE SUBMI SSIONS OF THE ASSESSEE. WE FIND THAT LD. CIT(A) HAS DISMISSED THE APPEAL ON THE GROUND THAT ASSESSEE DID NOT ATTEND THE HEARING DESPITE SERVICES OF NOTI CE OF HEARING AND RELEVANT CONTENTS OF THE ORDER OF LD. CIT(A) ARE REPRODUCED HEREINBELOW:- 3. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE I S NOT INTERESTED IN PURSUING THE APPEAL. IT HAS BEEN HELD BY THE HONBL E SUPREME COURT IN THE CASE OF B.N. BHATTACHARJEE AND ANOTHER ( 188 ITR 461 ) (AT PAGES 477 & 478) THAT APPEAL DOES NOT MEAN ONLY FILING OF MEMO OF APPEAL BUT ALSO PURSUING IT EFFECTIVELY. IN CASES WHERE THE AS SESSEE DOES NOT WANT TO PURSUE THE APPEAL, APPELLATE AUTHORITIES HAVE IN HERENT POWER TO DISMISS THE APPEAL FOR NON-PROSECUTION AS HELD BY T HE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. CHEMIPOL VS. UNION OF INDIA IN EXCISE APPEAL NO. 62 OF 2009 . I AM, THEREFORE, CONVINCED THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL. I, THEREF ORE, DISMISS THE APPEAL OF THE ASSESSEE AS UNADMITTED. FROM THE ABOVE, IT IS EVIDENT THAT LD. CIT(A) HAS N OT DECIDED THE GROUNDS OF APPEAL ON THE BASIS OF STATEMENTS OF FACT AND SUBMI SSIONS MADE THEREIN. THEREFORE, WE ARE OF CONSIDERED OPINION, THAT IN TH E INTEREST OF JUSTICE GROUNDS OF APPEAL BE RESTORED BACK TO THE FILE OF LD. CIT(A ) FOR FRESH ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING AND ASSES SEE IS DIRECTED TO CO- OPERATE WITH LD. CIT(A) AS AND WHEN CALLED FOR. WE DIRECT ACCORDINGLY. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES AS INDICATED ABOVE. 6. REMAINING GROUNDS DO NOT CALL FOR ANY ADJUDICATI ON AT THIS STAGE BECAUSE THE MATTER IS ALREADY RESTORED BACK TO THE FILE OF LD. CIT(A) FOR ITA NO.598/AHD/2013 A.Y. 2008-09 MAHENDRABHAI J PANDYA V. ITO WD-2(4) SRT PAGE 4 DECIDING THESE ISSUES AFRESH AFTER PROVIDING REASON ABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (PRAMAD.KUMAR) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 10/05/2013 *+, - ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ','.2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. /56 ...2, .2 , *+, / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ , /TRUE COPY/ =/* '> .2 , *+, - STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 06/05 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 06/05 4) DATE OF CORRECTION 06/05, 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 07/05 7) ORDER UPLOADED ON 10/05 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 10/05