Shri Ramnlal Manohardas Patel, Surat V. ITO, Ward-2(3)(5), Surat

ITA 714/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0670 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 05-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO 714/SRT/2018 (AY 2008-09) (H EARING IN VIRTUAL COURT) RAMANLAL MANOHARDAS PATEL, B-69, MANIRATNA ROW HOUSE, BEHIND CNG PUMP, GODADARA SURAT-395010 PAN : AFSPP 8271 R VS. THE INCOME TAX OFFICER, WARD-2(3)(5), AAYAKAR BHAWAN, MAJURA GATE, SURAT. APPLICANT RESPONDENT ASSESSEE BY NONE REVENUE BY MS. ANUPAMA SINGLA SR.DR DATE OF HEARING 14.07.2021 DATE OF PRONOUNCEMENT 14.07.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT DATED 25.08.2018 FOR THE ASSESSMENT YEAR (AY) 2008-09. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE SUMMARIZED AS UNDER: 1) THAT THE LD CIT(A) ERRED IN NOT PROVIDING ADDITIONAL OPPORTUNITY OF HEARING. 2) THAT THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 2,91,162/- ON ACCOUNT OF COMMISSION ON SALE. 3) THE LD. CIT(A) HAS ERRED IN NOT CONFIRMING THE ACTION OF AO IN REOPENING UNDER SECTION 147. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS COMPLETED ON 11.03.2016 UNDER SECTION 143(3) READ WITH SECTION 147. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT MADE ITA NO. 714/SRT/2018 (AY 2008-09) RAMANLAL MANOHARDAS PATEL 2 ADDITION OF RS. 2,91,162/- ON ACCOUNT OF UNDISCLOSED COMMISSION INCOME. ON APPEAL BEFORE LD.CIT(A)THE ACTION OF THE ASSESSING OFFICER IN REOPENING AS WELL AS ADDITION OF UNDISCLOSED INCOME WAS UPHELD. THE LD CIT(A) CONFIRMED THE ORDER OF ASSESSING OFFICER IN EX-PARTY ORDER BY TAKING VIEW THAT DESPITE GRANTING A NUMBER OF OPPORTUNITY THE ASSESSEE FAILED TO COMPLY THE NOTICES. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS TAKEN UP FOR HEARING. PERUSAL OF THE RECORD SHOWS THAT THERE IS DELAY OF 101 DAYS IN FILING OF THE APPEAL. ON FURTHER PERUSAL OF RECORD IT IS REVEAL THAT THE ASSESSEE HAS FILED HIS AFFIDAVIT IN SUPPORT OF CONDONATION OF DELAY. IN THE AFFIDAVIT THE ASSESSEE DEPOSED THAT THE ORDER OF LD CIT(A) WAS NOT RECEIVED TO HIM DUE TO CHANGE OF HIS ADDRESS. THE ORDER OF LD CIT(A) WAS NOT RECEIVED IN TIME. ON COMING TO KNOW OF THE REJECTION OF THE APPEAL THE ASSESSEE IMMEDIATELY FILED THIS APPEAL. IT IS FURTHER AVERRED THAT THE DELAY IN FILING THE APPEAL IN NOT INTENTIONAL AND PRAYED FOR CONDONING THE DELAY IN FILING THE APPEAL. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE NOT OPPOSED THE APPLICATION VERY SERIOUSLY. HOWEVER, THE LD DR SUBMITS THAT THE ASSESSEE SHOULD NOT TAKE THE CASUAL APPROACH IN FILING APPEAL BEFORE THE TRIBUNAL. ITA NO. 714/SRT/2018 (AY 2008-09) RAMANLAL MANOHARDAS PATEL 3 5. CONSIDERING THE CONTENTS OF THE AFFIDAVIT AND THE FACT THAT THE DELAY IN FILING IS NOT INTENTIONAL AND DELIBERATE, BUT DUE TO THE FACTS EXPLAINED IN THE AFFIDAVIT AND THE ASSESSEE WOULD NOT GET ANY BENEFIT IN FILING THE APPEAL BELATEDLY. THE DELAY IN FILING THE APPEAL IS CONDONED. 6. ON MERITS OF THE CASE, THE LD. SR. DR FOR THE REVENUE SUBMITS THAT THE ASSESSEE WAS GIVEN TWO OPPORTUNITY AS RECORDED IN PAGE5.1.1 OF THE ORDER PASSED BY THE LD. CIT(A). THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE ISSUED BY THE LD.CIT(A). THE NOTICES SENT TO THE ASSESSEE WERE RETURN BACK WITH THE REMARK OF THE POSTAL AUTHORITY LEFT. THE LD. CIT(A) LEFT WITH NO OPTION, EXCEPT TO PROCEED TO DECIDE THE ISSUE AND IN ABSENCE OF ANY EVIDENCE OR EXPLANATION AFFIRM THE ACTION OF AO. IN ALTERNATIVE SUBMISSION, THE LD. SR. DR FOR THE REVENUE SUBMITS THAT IN CASE THE HONBLE TRIBUNAL IS DEEM APPROPRIATE, THE ASSESSEE BE DIRECTED TO BE VIGILANT AND NOT TO DEFAULT IN ATTENDING THE PROCEEDINGS BEFORE LD.CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR FOR THE REVENUE AND HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. WE FIND THAT THE LD. CIT(A) FIXED THE HEARING ON TWO OCCASIONS AS MENTIONED IN PARA 5.1.1 OF THE IMPUGNED ORDER. IT IS RECORDED BY LD. CIT(A) THAT NO COMPLIANCE WAS MADE BY THE ASSESSEE. HOWEVER, FIND THAT THE NOTICES SENT TO THE ASSESSEE WERE RETURN BACK AS RECORDED BY LD CIT(A). WE FURTHER FIND THAT IN THE AFFIDAVIT FILED BY ITA NO. 714/SRT/2018 (AY 2008-09) RAMANLAL MANOHARDAS PATEL 4 ASSESSEE FOR CONDONATION OF DELAY, THE ASSESSEE CONTENDED THAT HIS ADDRESS WAS CHANGED. IN OUR VIEW THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT ATTENDING THE HEARING DUE TO CHANGE OF HIS ADDRESS, THOUGH IT WAS THE RESPONSIBILITY OF THE ASSESSEE TO COMMUNICATE THE LD CIT(A) ABOUT THE CHANGE OF HIS ADDRESS BY FILING FRESH FORM-35 OR OTHERWISE. THE LD CIT(A) DISMISSED THE APPEAL IN EX-PARTY ORDER WITHOUT DISCUSSING THE MERIT OF THE CASE. 8. FURTHER, WE FIND THAT THE ORDER OF THE LD. CIT(A) IS NOT IN ACCORDANCE WITH MANDATE OF SECTION 250(6) OF THE INCOME TAX ACT. SECTION 250(6) OF THE ACT MANDATES THAT THE LD. CIT(A) WHILE DECIDING THE APPEAL IS REQUIRED TO PASS ORDER ON POINTS OF DETERMINATION (GROUNDS OF APPEALS), DECISION THEREIN ON AND REASONS FOR SUCH DECISION. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE ALL THE GROUNDS OF APPEAL ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO ORDER THAT BEFORE PASSING THE ORDER THE LD. CIT(A) SHALL GRANT FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD.CIT(A) AS AND WHEN THE DATE OF HEARING AND TO PROVIDE ALL NECESSARY EVIDENCE AND INFORMATION WITHOUT ANY FURTHER DELAY AND NOT TO SEEK THE ADJOURNMENT WITHOUT ANY VALID REASONS. THE ASSESSEE IS FURTHER DIRECTED TO PROVIDE HIS E-MAIL ADDRESS AND TELEPHONE ITA NO. 714/SRT/2018 (AY 2008-09) RAMANLAL MANOHARDAS PATEL 5 NUMBER TO MAKE COMMUNICATION WITH HIM OR HIS REPRESENTATIVE. THE ASSESSEE SHALL FILE HIS LATEST ADDRESS AND E-MAIL ADDRESS AND HIS TELEPHONE NUMBER OR OF HIS REPRESENTATIVE, WITHIN FIFTEEN DAYS OF RECEIPT OF THIS NOTICE IN THE OFFICE OF ASSESSING OFFICER AS WELL AS BEFORE JURISDICTIONAL CIT(A). ACCORDINGLY THE GROUNDS OF APPEAL BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. NO ORDER AS TO COST. ORDER ANNOUNCED ON 14 TH JULY 2021 AT THE TIME OF HEARING IN VIRTUAL COURT HEARING. SS SD/- SD/- (DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 14 /07/2021 (SELF) COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, ITAT, SURAT