Metal Trading, Vadodara V. ITO, Ward-1(2)(1), Vadodara

ITA 698/AHD/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1123 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO. 698/AHD/2018 (ASSESSMENT YEAR : 2009-10) METAL TRADING, 490-491/B1/3, CHANDAN COMPLEX, OPP. HIMALAYA MACHINERY, MAKARPURA, VADODARA -390 010. VS. INCOME TAX OFFICER, WARD 1(2)(1), VADODARA [PAN NO. AAMFM 2120 P] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : MS. URVASHI SODHAN, A.R. RESPONDENT BY : SHRI SATISH SOLANKI, SR. D.R. DATE OF HEARING 13/09/2019 DATE OF PRONOUNCEMENT 13/09/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE EX-PARTE ORDER DATED 19.12.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 5, VADODARA ARISING OUT OF THE ORDER DATED 19.03.2015 PASSED BY THE INC OME TAX OFFICER, WARD-1(2)(1) UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FOR THE ASSESSMENT YEAR 2009-10. 2. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE COUL D NOT ATTAIN THE HEARING AND THE APPEAL HAS BEEN DECIDED ON THE BASIS OF MATERIALS AVAILABL E ON RECORD BEFORE THE LEARNED - 2 - ITA NO.698/AHD/201I8 METAL TRADING-VS-ITO ASST. YEAR 2009-10 CIT(A). IT WAS FURTHER POINTED OUT BY THE LEARNED C OUNSEL THAT DUE TO SHIFTING OF OFFICE TO A NEW PREMISE AFTER 10 MONTHS FROM THE FILING OF TH E SAID APPEAL, THE NOTICES ISSUED BY THE LEARNED CIT(A) HAS NOT BEEN RECEIVED BY THE ASSESSE E SINCE IT WAS SENT TO THE OLD ADDRESS. THE LEARNED AR FURTHER SUBMITS THAT INADVE RTENTLY THE NEW ADDRESS WAS NOT INFORMED TO THE REVENUE AUTHORITIES WHICH WAS GENUI NELY SKIPPED FROM THEIR MIND DUE TO PASSAGE OF TIME. THE EX-PARTE ORDER PASSED BY THE L EARNED CIT(A) MADE KNOWN TO THE ASSESSEE BY THEIR BANKERS BY THE ISSUANCE OF NOTICE S U/S 226(3) OF THE ACT. THE LEARNED AR FURTHER SUBMITTED AN AFFIDAVIT WHERE THE ENTIRE FACTS HAS BEEN STATED FAITHFULLY ON OATH; SUPPORTING DOCUMENTS THEREOF WERE ALSO ANNEXE D TO THE SAID AFFIDAVIT FILED BEFORE US. HENCE SHE PRAYS FOR SETTING ASIDE THE ISSUE TO THE LEARNED CIT(A). THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE ALSO SUBMITTED A COPY OF THE JUDGMENT PASSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE MATTER OF CIT-VS-SIMIT P. SHETH ON THE MERIT OF THE MATTER. WE, HOWEVER, MAKE IT CLEAR THAT WE ARE NOT DEALING WITH THE MERIT OF THE MATTER HENCE THE LEARNED CIT(A) IS AT LIBERTY TO CO NSIDER THE SAID JUDGMENT WHILE DECIDING THE MATTER ON MERIT. ON THE OTHER HAND, TH E LEARNED DR HAS NOT RAISED ANY SERIOUS OBJECTION TO SUCH CONTENTION MADE BY THE LE ARNED AR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE PARTIES, WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD INCLUDIN G THE AFFIDAVIT DATED 19.08.2019 AFFIRMED BY THE ASSESSEE. WE ARE SATISFIED WITH THE STATEMENTS MADE BY THE ASSESSEE IN HIS AFFIDAVIT AND ALSO TO THIS FACT THAT THE LEARNED AO BY AND UNDER THE NOTICE U/S 226(3) OF THE ACT DATED 24.01.2018 DIRECTED THE ASSESSEE TO M AKE PAYMENT OF A SUM OF RS.14,71,170/-, IN DEFAULT, THE ASSESSEE SHALL BE D EEMED TO BE AN ASSESSEE IN DEFAULT. HENCE REAL URGENCY EXISTS IN THE MATTER TO BE DISPO SED OF BY THE LEARNED CIT(A) IMMEDIATELY. IT IS NEEDLESS TO MENTION THAT THE SAI D NOTICE DATED 24.01.2018 U/S 226(3) OF THE ACT ISSUED BY THE LEARNED AO IS ANNEXED TO THE SAID AFFIDAVIT FILED BEFORE US BY THE LEARNED AR. SINCE WE FIND THAT THE PLEA TAKEN BY TH E ASSESSEE FOR NOT APPEARING BEFORE THE LEARNED CIT(A) IS GENUINE AND BONAFIDE, FOR THE ENDS OF JUSTICE, WE ARE INCLINED TO SET - 3 - ITA NO.698/AHD/201I8 METAL TRADING-VS-ITO ASST. YEAR 2009-10 ASIDE THE ISSUE TO THE FILE OF THE LEARNED CIT(A). IN THAT VIEW OF THE MATTER, WE SET ASIDE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) WITH A FURTHER DIRECTION UPON HIM TO RENDER AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WITHIN 4 WEEKS FROM THE DATE OF PASSING OF THIS ORDER BY US AND TO FINALIZE THE ISSUE WITHIN 4 WEEK S THEREAFTER. THE LEARNED CIT(A) IS FURTHER DIRECTED TO CONSIDER THE MATERIALS AVAILABL E ON RECORD INCLUDING THE EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME O F HEARING OF THE APPEAL BEFORE HIM. WE FURTHER MAKE IT CLEAR, THAT THE ASSESSEE WILL ALSO NOT PRAY FOR ANY UNNECESSARY ADJOURNMENT BEFORE THE LEARNED CIT(A) AND WILL ALSO CORPORATE W ITH THE FIRST APPELLATE AUTHORITY. HENCE, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 13/09/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/09/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-5, VADODARA. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD