M/s. Nishit Construction Co. Pvt. Ltd., Indore V. The Dy. CIT., Indore

ITA 65/IND/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9677 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 08-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C.SHARMA, ACCOUNTANT MEMBER PAN NO. : AABCN8168 I.T.A.NO. 65/IND/2010 A.Y. : 2002-03 NISHIT CONSTRUCTION CO.PVT.LTD. DCIT CIRCLE 1(1), 13-14, R.N.T. MARG, VS INDORE. DAWA BAZAR, INDORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR PADLIA, C. A. RESPONDENT BY : SHRI PRADEEP KUMAR MITRA, SR. DR O R D E R PER JOGINDER SINGH, J.M. THIS APPEAL IS BY THE ASSESSEE AGAINST THE EX PARTE ORDER OF LD. CIT(A) DATED 22.2.09 ON THE GROUND THAT ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. FIRST APP ELLATE AUTHORITY ERRED IN CONFIRMING THE PENALTY OF RS. 4, 00,810/- IMPOSED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, WITHOUT -: 2: - 2 PROVIDING OPPORTUNITY TO THE ASSESSEE OF BEING HERD AND TO DEFEND HIS CASE IN A REQUIRED MANNER.. 2. DURING THE COURSE OF HEARING OF THIS APPEAL, WE HAV E HEARD SHRI SUDHIR PADLIA, LEARNED COUNSEL FOR THE A SSESSEE AND SHRI PRADEEP KUMAR MITRA, LD. SENIOR D.R.. THE CRU X OF THE ARGUMENT ON BEHALF OF THE ASSESSEE IS IDENTICAL TO THE GROUND RAISED WHEREAS THE LD. SENIOR D.R. CONTENDED THAT F IRST IT IS THE DUTY OF THE ASSESSEE TO APPEAR BEFORE THE AUTHORITI ES AND MERELY SINCE IT IS AN EX PARTE ORDER, THEREFORE, IN THE INTEREST OF BOTH THE PARTIES, THESE APPEALS MAY BE REMANDED BAC K TO THE FILE OF THE LD. CIT(A). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL AVAILABLE ON THE FILE. THE BRIEF FACTS ARE THAT THE ASSESSEE IS A BUILDER, WHO HAS CONSTRUCTED SEVERAL BUILDINGS IN INDORE. AS PER THE ASSESSMENT ORDER, THE ASSESSEE C ONSTRUCTS BUILDING EITHER ON HIS OWN ACCOUNT OR ON CONTRACT BASIS. DURING THE FINANCIAL YEAR 2001-02, THE ASSESSEE COM PLETED SEVERAL CONTRACTS SITES AT VARIOUS PLACES. ON THESE COMPLETED CONTRACT SITES, THE ASSESSEE SHOWED PROFIT AS PER T HE COPIES OF THE RESPECTIVE PROFIT AND LOSS ACCOUNT FILED WITH T HE RETURN. IT IS SEEN THAT THE ASSESSMENT WAS ALSO FRAMED U/S 144 OF THE ACT AND THE SAME IS THE SITUATION BEFORE THE LD. CI T(A). THIS -: 3: - 3 APPEAL WAS FIXED FOR 12.12.2009 VIDE NOTICE DATED 4 .12.2009 AND NOBODY ATTENDED THE PROCEEDINGS AND FOR THE NON - APPEARANCE OF THE ASSESSEE, THE APPEAL WAS DECIDED EX PARTE. IT IS SEEN THAT THE NOTICE WAS ISSUED ON 4.12.2009 AND THE DATE OF HEARING WAS ON 10.12.2009 ONLY WHICH IS LES S THAN A WEEK TIME. AFTER THAT THERE IS NO MENTION OF OTHER DATE IN THE IMPUGNED ORDER. KEEPING IN VIEW THE TOTALITY OF FAC TS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFO RE, THIS APPEAL IS REMANDED BACK TO THE FILE OF THE LD. CIT( A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE LAW FOR WHICH D UE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. THEREFORE, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LEARNED RESPECTIVE COUNSEL FROM BOTH SIDES A T THE CONCLUSION OF THE HEARING ON 24.01.2011. SD/- SD/- (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :24TH JANUARY, 2011. CPU* 281