M/s. Mahavir Industries, Ahmedabad V. The Income tax Officer,Ward-6(4), Ahmedabad

ITA 669/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5721 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 02-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B D BAROT D R O OO
• Keywords: Non passing of speaking order
• Section: 69C; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI SHRI N.S.SAINI, ACCOUNTANT MEMBER SHRI N.S.SAINI, ACCOUNTANT MEMBER SHRI N.S.SAINI, ACCOUNTANT MEMBER SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :19-7-10 DRAFT ED ON: 19-7-10 ITA NO.669/AHD/2010 ASSESSMENT YEAR: 2006-07 M/S. MAHAVIR INDUSTRIES,548, PHASE-II, GIDC ESTATE, VATVA,AHMEDABAD- 382445. VS. INCOME TAX OFFICER,WARD 6(4),C.U.SHAH BUILDING, ASHRAMROAD,AHMEDABAD. PAN/GIR NO. : AALFM 7265 L (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SHRI B.D. BAROT, D.R. O OO O R D E R R D E R R D E R R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXI, AHMEDABAD DA TED 28-01-2010. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- GROUND NO.1 READS AS UNDER :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AND FACT BY CONFIRMING THE ASSESSMENT ORDER PASSED BY ITO, 2 WARD 6(4) AND DISMISSING THE APPEAL BY PASSING STEREOTYP E ORDER. THE OBSERVATIONS IN RELEVANT PARAGRAPH NO.5 OF APPELLATE ORDER READS AS UNDER :- I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER PASSED BY THE LD. I.T.O., WARD 6(4), AHMEDABAD. I HAVE SEEN GROUND S OF APPEAL. I HAVE ALSO SEEN THE WRITTEN SUBMISSION GIVEN THE LD. A. R. BUT THE SUBMISSION COULD NOT CONVINCE ME, HENCE, THE ASSESSME NT ORDER PASSED BY THE LD. I.T.O., WARD 6(4) , AHMEDABAD IS APPROVED AS IT IS. 2. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS N OT EVEN CONSIDERED AND COMMENTED ON THE SUBMISSION OF APPE LLANT FILED DURING THE COURSE OF HEARING DATED 28-01-10. T HUS, THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX(APPE ALS) IS NON SPEAKING ORDER. 3. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND LEARNED ASSESSING OFFICER HAVE FAILED TO APPRECIATE THA T DEPOSIT ACCEPTED FROM SHRI MUKESHBHAI KESHAVLAL CHAUHAN IS GEN UINE AND CONFIRMATION OF THE SAME IS ALREADY FILED WITH T HE ASSESSING OFFICER, AS NOTED BY LEARNED ASSESSING OFFICER HIMSELF I N PARAGRAPH 4 (LINE NO.4 AND 5) OF THE ASSESSMENT ORDER. 4. LEARNED ASSESSING OFFICER HAS ADDED THE DEPOSIT, MERE LY BECAUSE APPELLANT COULD NOT PRODUCE DEPOSITOR SHRI MU KESH K. CHAUHAN ON THE APPOINTED DATE 20-10-08, AS HE WAS NOT AVAILABLE ON THAT DATE. THE LEARNED ASSESSING OFFICER H AS NOTED THE FACT IN ASSESSMENT ORDER ITSELF THAT ASSESSEE FILED THE REPLY DATED 20-10-08 THAT SHRI MUKESH CHAUHAN IS OUT OF STAT ION. (VIDE PARAGRAPH 4, LINE NO.9 OF THE ASSESSMENT ORDER). 5. LEARNED ASSESSING OFFICER HAS MADE ADDITION OF RS.17, 000/- UNDER SECTION 68 OF THE INCOME TAX ACT, MERELY ON T HE BASIS THAT APPELLANT COULD NOT PRODUCE THE DEPOSITOR, AS HE WAS O UT OF STATION, ON THE APPOINTED DATE. THE LD. ASSESSING OFFICE R HAS NOT RECORDED ANY SATISFACTION TO FORM THE OPINION AND REC ORD ANY REASONS FOR NOT ACCEPTING THE EXPLANATION OF THE ASSESSE E. HE HAS NOT EVEN ISSUED SHOW CAUSE NOTICE BEFORE MAKING THIS ADDITION. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) A ND LEARNED ASSESSING OFFICER HAVE ERRED IN LAW AND FACT BY DISALLOWING THE INTEREST OF RS.538/- PAID ON ABOVE DEP OSIT UNDER SECTION 69C OF THE INCOME TAX ACT,1961. 3 3. AT THE OUTSET THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY SIMPLY OBSERVING THA T HE IS NOT CONVINCED WITH THE WRITTEN SUBMISSIONS FILED BY THE LEA RNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. HE HAS GIVEN NO REASONS FO R NOT ACCEPTING THE WRITTEN SUBMISSIONS OF THE ASSESSEE. THEREFORE, THE OR DER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS A NON SPEAKING O RDER WHICH CANNOT BE SUSTAINED IN ;LAW. THEREFORE, THE ORDER OF THE LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) SHOULD BE SET ASIDE AND THE APPEAL SHOULD BE RESTORED TO HIS FILE WITH A DIRECTION TO PASS A SPEAKING ORDER. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AGREE D WITH THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE OF T HE ASSESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORDS, I FIND THAT THE LEARNED COMMISSIONER OF INCOM E TAX(APPEALS) HAS AFTER RECORDING THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE, THEREAFTER REPRODUCING THE ASSESSMENT ORDER ON THE ISSUE HAS DECIDED THE APPEAL BY OBSERVING AS UNDER :- 5. I HAVE CAREFULLY EXAMINED THE ASSESSMENT ORDER PASSE D BYTHE LD. ITO, WARD 6(4), AHMEDABAD. I HAVE SEEN GROUNDS OF APPEAL. I HAVE ALSO SEEN THE WRITTEN SUBMISSION GIVEN BY THE LD.A.R. BU T THE SUBMISSIONS COULD NOT CONVINCE ME, HENCE, THE ASSESSMENT OR DER PASSED BY THE LD. I.T.O. WARD 6(4)_ AHMEDABAD IS APPRO VED AS IT IS. 4 6. A READING OF THE ABOVE FINDING OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) SHOWS THAT HE HAS NOT GIVEN ANY REASON AS TO WHY THE SUBMISSIONS OF THE ASSESSEE DID NOT CONVINCE HIM. THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) EXERCISES A QUA SI JUDICIAL FUNCTION AND THEREFORE, IT IS HIS DUTY TO PASS A WELL REASONED OR DER GIVING REASONS FOR EACH AND EVERY CONTENTION RAISED BY THE ASSESSEE IN HIS A PPEAL SO THAT IN CASE OF THE APPEAL OF THE ASSESSEE BEING DISMISSED, THE ASSESSE E IS IN A POSITION TO PLEAD HIS CASE BEFORE A HIGHER FORUM. IN THE CIRCUMSTANCES THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) CANNOT SUSTAINED IN LAW. I THEREFORE, SET THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO H IS FILE TO RE-ADJUDICATE THE APPEAL OF THE ASSESSEE BY PASSING A SPEAKING ORDER AND AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY TO THE ASSESSEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 16TH DAY OF JULY, 2010. SD/- ( N.S. SAINI ) ACCOUNTANT MEMBER AHMEDABAD; ON THIS 16TH DAY OF JULY, 2010 5 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER , //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 16-7-10 ----------------- -- 2. DRAFT PLACED BEFORE AUTHORITY 16-7-10 ------- ------------ 3. DRAFT PROPOSED & PLACED 19-7-10 JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 19-7-10 JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 19-7-10 6. KEPT FOR PRONOUNCEMENT ON 19-7-10 7. FILE SENT TO THE BENCH CLERK 19-7-10 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------