Sh. Rashid Admed, Saharanpur V. ITO, Saharanpur

ITA 6074/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52577 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 31-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 6074/DEL/2010 ASSESSMENT YEAR: 2007-08 RASHID AHMED, VS. ITO, S/O MOHD. TASIN WARD-2, SHEIKHPURA KADEEM, SAHARANPUR. SAHARANPUR. AIHPA1886D (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. PRATIMA KAUSHIK, SR. DR ORDER PER C.L. SETHI, J.M. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 8.9.2010 PASSED EX-PARTE BY THE LD. CIT(A), FOR THE A.Y. 2007- 08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MUZAFFARNAGAR, HAS ERRED IN FACT AND IN LAW BY DECIDING THE APPEAL EX-PARTE WITHOUT GIVING FINAL OPPORTUNITY WHICH IS AGAINST THE PRINCIPAL OF NATUR AL JUSTICE AS NO POWER OF ATTORNEY WAS GIVEN TO ANY COUNCIL SO NO QUESTION ARISE FOR WITHDRAWING OF POWER OF ATTORNEY. ITA NO. 6074/D/2010 2 THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MUZAFFARNAGAR HAS ERRED IN FACT AND IN LAW BY HOLDING THE ADDITION IN G.P. RATE OF RS. 9,63,548/- . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MUZAFFARNAGAR HAS ERRED IN FACT AND IN LAW BY HOLDING THE ADDITION OF RS. 72,320/- AGAINST DISALLOWANCE OF EXPENSES. 3. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. NONE FOR THE ASSESSEE WAS PRESENT. IN THIS CASE, T HE ASSESSING OFFICER MADE THE ADDITION OF RS. 9,63,548 /- BY APPLYING THE GROSS PROFIT RATE OF 2.5%. THE AO ALS O DISALLOWED THE SUM OF RS. 72,320/- OUT OF TOTAL EXP ENSES DEBITED IN THE PROFIT AND LOSS ACCOUNT UNDER THE VA RIOUS HEADS. 4. ON AN APPEAL, LD. CIT(A) HAS CONFIRMED THE AOS ACTION. THE LD. CIT(A) DECIDED THE APPEAL EX-PARTE. IN THE APPELLATE ORDER, THE LD. CIT(A) HAS MENTIONED THAT THE COUNSE L OF THE ASSESSEE APPEARED ON 7.9.10 AND REQUESTED TO WITHDR AW HIS POWER OF ATTORNEY, AS THE ASSESSEE WAS NOT RESPONDI NG TO HIM. HOWEVER, THE LD. CIT(A) DECIDED THE APPEAL EX -PARTE ON 08.09.2010. ITA NO. 6074/D/2010 3 5. IN THIS CASE, THE DATE OF HEARING BEFORE THE LD. CIT(A) WAS KNOWN TO ASSESSEES COUNSEL, AND AS THEASSESSEE S COUNSEL COULD NOT GET RESPONSE FROM THE ASSESSEE, H E, INCLINED TO WITHDRAW HIMSELF FROM THE CASE. AT THI S STAGE, THE LD. CIT(A) SHOULD HAVE ALLOWED THE ASSESSEES COUNS EL TO WITHDRAW FROM THE CASE AND THEN ISSUE A FRESH NOTIC E OF HEARING TO THE ASSESSEE. BUT WITHOUT DOING SO, THE LD. CIT(A) DISPOSED OFF THE APPEAL EX-PARTE ON THE NEXT IMMEDI ATE DAY I.E. ON 8.9.10. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE HAD NO OPPORTUNITY TO PRESENT CASE AFTER HIS COUNSEL EXPRESSED HIS DESIRE ON 7.9.10 TO WITHDRAW FROM THE CASE. WE, THEREFORE, RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR HIS FRESH DISPOS AL AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO COOPERATE WITH THE LD. CIT(A) FOR DISPOSAL OF THE APPEAL AT THE EARLIEST W ITHOUT SEEKING ANY UNDUE ADJOURNMENTS OF HEARING. WE ORDE R ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. ITA NO. 6074/D/2010 4 7. THIS DECISION WAS PRONOUNCED ON 16.8.2011 AFTER HEARING WAS OVER. (SHAMIM YAHYA) (C. L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR