Shri Nitesh Ramanlal Patel, Ahmedabad V. The Dy.CIT, Circle-6, Ahmedabad

ITA 712/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1775 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 22-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHARAT PATEL
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER ./ ITA NOS. 711 & 712/AHD/2016 / ASSESSMENT YEAR: 2010-11 NITESH RAMANLAL PATEL, 1/96/4, FULWADI, ZANKAR APARTMENT, WATER TANK, THALTEJ, AHMEDABAD .. APPELLANT PAN : AKCPP 2991 B VS ACIT, CIRCLE-6, AHMEDABAD .. RESPONDENT ASSESSEE(S) BY : SHRI BHARAT PATEL, AR REVENUE BY : SHRI MUKESH SHARMA, SR. DR. / DATE OF HEARING 28/04/2016 /DATE OF PRONOUNCEMENT 28/04/2016 / O R D E R THESE TWO APPEALS ARE DIRECTED AT THE INSTANCE OF T HE ASSESSEE; ONE RELATING TO QUANTUM ADDITION FOR THE ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST THE ORDER OF THE C OMMISSIONER OF INCOME-TAX (APPEALS)-13, AHMEDABAD DATED 27.02.2 015; AND ANOTHER APPEAL RELATING TO THE IMPOSITION OF PENALT Y U/S 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)- 13, AHMEDABAD DATED 31.03.2015. 2. FIRST, I SHALL TAKE UP ITA NO. 711/AHD/2016. TH E ASSESSEE HAS RAISED FOLLOWING GROUNDS IN THIS APPEA L:- THE LEARNED CIT(A)-13, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN - (SMC) ITA NOS. 711 & 712/AHD/2016 NITESH RAMANLAL PATEL VS. ACIT AY 2010-11 2 1. DISMISSING THE APPEAL BY NOT CONDONING THE DELAY IN FILING THE SAME, WHICH WAS ATTRIBUTABLE TO BONA-FID E REASONS; 2. IN NOT ADJUDICATING THE GROUNDS OF APPEAL ON MER IT, WHICH WERE TAKEN IN THE APPEAL MEMO IN PRESCRIBED FORM FILED BEFORE HIM, WHICH ARE RE-PRODUCED HERE I N BELOW FOR THE SAKE OF CONVENIENCE OF THE HON'BLE BE NCH: 'THE ASSESSING OFFICER OF CIRCLE-6, AHMEDABAD HAS ERRED IN: 1. MAKING ADDITION OF RS.5,30,314/- BY PRESUMING THE AMOUNT OF INITIAL DEPOSIT OF SHARE TRANSACTIONS TO THE SUB-BROKER ACCOUNT. 2. MAKING ADDITIONS OF RS.3,28,332/- BY ADDING CLOSING BALANCE OF SHARES WORKED OUT AT THE COST OF PURCHASE. THE ASSESSEE CRAVES LEAVE TO ADD, AMEND, DELETE OR ALTER ONE OR MORE GROUNDS OF APPEAL'. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, DELETE OR ALTER ONE OR MORE GROUNDS OF APPEAL. 3. I FIND THAT THE CIT(A) HAS DISPOSED OF THE QUANT UM APPEAL BY OBSERVING AS UNDER:- IT IS SEEN FROM THE RECORDS THAT THE ORDER WAS PAS SED BY THE AO ON 12/02/2013 AND THE ORDER WAS SENT BY REGISTERED POST THEREAFTER. THE APPELLANT HAS FILE D THE APPEAL ON 11/10/2013 WHICH IS NEARLY 8 MONTHS AFTER RECEIPT OF THE ORDER, RESULTING IN DELAY OF ABOUT S EVEN MONTHS. THE APPELLANT HAS GIVEN NO REASONS FOR THI S DELAY IN FILING APPEAL. IN VIEW OF THE ABOVE, THE CONDON ATION OF DELAY IS NOT GRANTED IN THIS CASE. IT HAS BEEN HEL D BY THE COURTS THAT THE APPELLANT HAS TO SHOW REASON FOR DE LAY ON THE LAST DAY OF LIMITATION PERIOD AND THEREAFTER FO R EACH DAY THEREAFTER. CONDONATION IS NOT A MATTER OF RIG HT AND (SMC) ITA NOS. 711 & 712/AHD/2016 NITESH RAMANLAL PATEL VS. ACIT AY 2010-11 3 THE COURT HAS TO EXERCISE THE DISCRETIONARY JURISDI CTION. RELIANCE IS MADE ON THE FOLLOWING JUDGMENTS: I. MADHU DADHA VS. ACIT (MAD) 317 ITR 458 II. JCIT VS. TRACTORS & FARMS EQUIPMENTS LTD (ITAT CHENNAI) 104 ITD 149 IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL FILED B Y THE APPELLANT IS DISMISSED, AS THERE IS NO JUSTIFICATIO N GIVEN BY THE APPELLANT FOR CONDONATION OF DELAY IN FILING AP PEAL. 4. THUS, FROM THE ABOVE, I AM OF THE OPINION THAT T HE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY A NON-S PEAKING ORDER, WHICH IS NOT JUSTIFIED. REGARDING THE DELAY IN FILLING THE APPEAL BEFORE THE TRIBUNAL, I FIND THAT THERE WERE SEVERAL COMMUNICATIONS BETWEEN THE AUTHORIZED REPRESENTATIV E FOR THE ASSESSEE WHO IS HANDLING THE CASE OF THE ASSESSEE A ND THE TAX CONSULTANT ASSOCIATED WITH THE ASSESSEE AT DIFFEREN T STAGES AND THE DELAY IN FILING THE APPEAL TOOK PLACE DUE TO TH E COMMUNICATION GAP BETWEEN THEM, AS DEPOSED BY SHRI KUNAL V. DESAI VIDE AFFIDAVIT DATED 19.03.2016. THEREFORE, AGREEING TO THE CONTENTION OF THE ASSESSEE, I CONDONE THE DELAY IN FILING THE APPEAL AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW, AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE I AM RESTORING THE MATTER BACK TO C IT(A) ON PRELIMINARY ISSUE, I AM REFRAINING TO COMMENT ON ME RIT OF THE ISSUE AT HAND. 5. AS A RESULT, THIS APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 6. NOW I TAKE UP ITA NO.712/AHD/2016. THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER OF THE LD. CIT( A)-13, (SMC) ITA NOS. 711 & 712/AHD/2016 NITESH RAMANLAL PATEL VS. ACIT AY 2010-11 4 AHMEDABAD DATED 31.03.2015 CONFIRMING THE PENALTY O F RS.3,00,000/- IMPOSED U/S 271(1)(C) BY THE LD. ASSE SSING OFFICER ON THE ADDITION OF RS.8,58,646/-. AT THE O UTSET, LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT PENALTY IS CONSEQUENTIAL TO THE QUANTUM PROCEEDINGS AND SHOULD BE DEALT WITH ACCORDINGLY. AS I HAVE ALREADY RESTORED THE Q UANTUM APPEAL TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION , I SET ASIDE THIS ISSUE ALSO TO THE FILE OF THE CIT(A) WITH THE DIREC TION TO DECIDE THE SAME IN ACCORDANCE WITH LAW, AFTER PROVIDING DU E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28 TH APRIL, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA K. YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 28/04/2016 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD