Gemalsingh Mohansingh Solanki, Surat V. Deputy Commissioner of Income Tax, Circle 1(2), Surat

ITA 620/SRT/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1893 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S CHOUDHARY
• Keywords: Opportunity of being heard
• Section: 250

Judgement Text

GEMALSINH MOHANSINH SOLANKI VS. DCIT, CIRCLE-1(2),SURAT/ITA NO.620/SRT/2018/A.Y.2009-10 PAGE 1 OF 2 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT , . . , BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A. NO.620/SRT/2018 / ASSESSMENT YEAR : 2009-10 GEMALSINH MOHANSINH SOLANKI, 101, NEVIL PARK, OPP. CHINA GATE, NEW CITY LIGHT, SURAT 395 017. [PAN: AACHG 5158 D] VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI MEHUL SHAH CA /REVENUE BY SHRI P.S.CHOUDHARY SR. DR / DATE OF HEARING: 0 9 . 0 1 .201 9 /PRONOUNCEMENT ON 11 .01.2019 /O R D E R PER DIVA SINGH, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 25.05.2018 OF CIT(A)-1, SURAT PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING GROUND NO.1 WHICH READS AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING EX- PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LD.AR INVITING ATTENTION TO THE CONTENTS OF THE EARLY HEARING APPLICATION WHICH WAS DECIDED IN FAVOUR OF THE ASSESSEE AND THE IMPUGNED ORDER WHICH IS AN EX-PARTE ORDER SUBMITTED THAT THE ASSESSEE COULD NOT PARTICIPATE IN THE PROCEEDINGS ON THE LAST DATE AND THE CIT(A) INSTEAD OF PASSING THE ORDER ON MERITS DISMISSED THE ASSESSEES APPEAL FOR NON- REPRESENTATION RELYING UPON THE MULTIPLAN INDIA LTD., 38 ITD 320 (DEL)AMONGST OTHER DECISIONS. IN THESE CIRCUMSTANCES IT WAS HIS LIMITED PRAYER THAT ACCEPTING HIS ORDER UNDERTAKING THE ORDER MAY BE SET-ASIDE TO THE FILE OF THE CIT(A) FOR A DECISION ON MERIT. RELIANCE WAS PLACED UPON THE CASE OF M/S.HIMACHAL SALT SUPPLIERS VS. ITO ORDER DATED 04.09.2018 IN GEMALSINH MOHANSINH SOLANKI VS. DCIT, CIRCLE-1(2),SURAT/ITA NO.620/SRT/2018/A.Y.2009-10 PAGE 2 OF 2 ITA NO.48/CHD/2018 FOR A.Y. 2011-12 FILED IN SUPPORT OF THE PRAYER FOR REMAND. 3. THE LD.SR.DR POSED NO OBJECTION TO THE SAID PRAYER FOR THE ASSESSEE. 4. WE HAVE HEARD SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, WE SET-ASIDE THE IMPUGNED ORDER NOTING THAT THE PROCEDURE ADOPTED FOR DISPOSAL OF ASSESSEES APPEAL IN THE AFOREMENTIONED MANNER IS NOT IN TERMS OF THE STATUTORY REQUIREMENTS. SUB-SECTION (6) OF SECTION 250 OF THE INCOME TAX ACT, 1961 MANDATES THAT THE COMMISSIONER (APPEALS) WHILE DECIDING THE APPEAL IS REQUIRED TO DISPOSE THE APPEAL STATING POINTS FOR DETERMINATION; THE DECISION THEREON AND THE REASONS FOR THE DECISION. WE FIND THAT THE CIT(A) HAS NOT FOLLOWED THE SAID STATUTORY MANDATE. ACCORDINGLY, ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT ASSESSEE SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD. IT IS ALSO MADE CLEAR THAT IN THE EVENTUALITY, THE ASSESSEE ABUSES THE TRUST REPOSED, THE LD.CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 6. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11-01-2019. SD/- SD/- ( .. / O.P.MEENA) ( /DIVA SINGH) /ACCOUNTANT MEMBER ( /JUDICIAL MEMBER) / SURAT, DATED : 11 TH JANUARY , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT