Shri Anjani Kumar Chaudhary, CHURU V. ITO, CHURU

ITA 68/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9654 (ITAT-JODHPUR)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 68/ JODH/201 7 ASSESSMENT YEAR:20 06 - 07 SHRI ANJANI KUMAR CHAUDHARY VS. THE ITO PROP. M/S SURESH KUMAR ANJANI KUMAR WARD - 1 CHURU CHURU PAN NO. AAIPC1177C (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. S.K. MEENA DATE OF HEARING : 01 /0 3 /2017 DATE OF PRONOUNCEMENT : 02/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DT. 05/10/2016 OF LD. CIT(A) - 35, NEW DELHI/CAMP OFFICE, JAIPUR PERTAINING TO ASSESSMENT YEAR 20 09 - 10 ON VARIOUS GROUNDS INCLUDING GROUND NO. 1 WHICH READS AS UNDER: 1 . THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN SUSTAINING THE PENALTY OF RS. 37,500/ - WITHOUT CONSIDERING THE WRITTEN SUBMISSION. 2. A T THE TIME OF HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER CONSIDERING THE RECORDS IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH PRESENT APPEAL EXPARTE QUA ASSESSEE APPELLANT ON MERIT AFTER HEARING THE LD. SR. DEPARTMENTAL REPRESENTATIVE. 3. THE RECORD SHOWS THAT THE ASSESSING OFFICER CONSIDERING THE ORDE R OF THE ITAT IN THE QUANTUM PROCEEDING S LEVIED PENALTY OF RS. 37,500/ - UPON THE ASSESSEE. THE SAID ORDER W AS CHALLENGED IN APPEAL BEFORE THE CIT(A) WHO IN AN EXPARTE ORDER CONFIRM ED THE PENALTY LEVIED . A PERUSAL OF THE SAID ORDER SHOWS THAT NO REFERENCE O F ANY SPECIFIC DATE OF HEARING HA S BEEN MADE BY THE LD. COMMISSIONER. THE LAW REQUIRES THE COMMISSIONER (APPEAL) TO DECIDE THE SAME AFTER FIXING THE DATE AND PLACE OF HEARING AND THE SAID AUTHORITY IS MANDATORILY REQUIRED TO GIVE NOTICE OF THE SAME TO THE ASSESSEE. RIGHT TO BE HEARD HAS BEEN GRANTED BY SUB SECTION (2) OF SECTION 250 IT IS SEEN THAT THE SAID STATUTORY REQUIREMENTS HAS NOT BEEN FULFILLED. THE ORDER ACCORDINGLY IS CONTRARY TO THE STATUTORY PROCEDURE SET OUT IN SECTION 250 OF THE INCOME TAX ACT AND AS SUCH CANNOT BE UPHELD. ACCORDINGLY THE FINDINGS OF THE IMPUGNED ORDER IN VIOLATION OF THE STATUTORY REQUIREMENTS ARE SET ASIDE. THE LD. SR. DEPARTMENTAL REPRESENTATIVE THOUGH RELIED UPON THE IMPUGNED ORDER HOWEVER WAS UNABLE TO POINT OUT IN THE ABS ENCE OF ANY RELEVANT DISCUSSION IN THE IMPUGNED ORDER AS TO BY WHAT MODE AND ON WHAT DATE THE HEARING HAD BEEN FIXED BY THE LD. COMMISSIONER. ACCORDINGLY HE AGREED THAT THE APPEAL MAY BE REMANDED. I N VIEW OF THE ABOVE THE IMPUGNED ORDER IS SET ASIDE BACK T O THE FILE OF LD. CIT(A) IN ORDER TO ADDRESS THE STATUTORY DEFICIT POINT ED OUT . NEEDLESS TO SAY THAT THE LD. CIT(A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD . SAID ORDER WAS PRONOUN CED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 3. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . THE ORDER IS PRONOUNCED ON 02/03/2017 IN THE OPEN COURT. SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 02/03/2017 AG COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT