Shri Radheshyam Exports, Surat V. ITO Ward-3(2)(3), Surat

ITA 715/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0683 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 05-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUPAMA SINGLA
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Tax effect; Set aside
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM ./ITA NO.715/SRT/2018 ( [ [ / ASSESSMENT YEAR: (2012-13) (VIRTUAL COURT HEARING) SHRI RADHESHYAM EXPORTS A-9, JERA MORAR NI WADI, KATARGRAM ROAD, SURAT, GUJARAT, PIN : 395500 V S. THE INCOME TAX OFFICER, WARD-3(2)(3), SURAT. ./ ./ PAN/GIR NO.: AAGFR3166A (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI SAPNESH SHETH, CA RESPONDENT BY : MRS. ANUPAMA SINGLA SR.DR / DATE OF HEARING : 15/07/2021 /DATE OF PRONOUNCEMENT : 15/07/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO A.Y.2012-13 IS DIRECTED AGAINST THE ORDER PASSED BY THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-3, SURAT, [LD.CIT(A)] IN APPEAL NO.CIT(A)/SURAT-3/10058/2017-18 DATED 21.08.2018 WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 147 R.W.S. 144 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT] DATED 20.12.2016. 2. AT THE OUTSET ITSELF, SHRI SAPNESH SHETH, LEARNED COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE THE LEARNED CIT(A) AND THE ORDER BEING AN EX PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. LEARNED COUNSEL FOR THE ASSESSE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. PAGE | 2 ITA NO.715/SRT/2018 FOR A.Y. 2012-13 SHRI RADHESHYAM EXPORTS 3. LEARNED COUNSEL ALSO SUBMITTED BEFORE US THAT AS PER ACTION PLAN OF ALL COMMISSIONER (APPEALS) TO TAKE THE APPEAL AFTER 30 TH JUNE 2018, WHEREIN TAX EFFECT WAS MORE THAN RS.10 LAKHS. THE COPY OF SUCH ACTION PLAN WAS PLACED ON NOTICE BOARD OF THE REVENUE. THE ASSESSEE WAS UNDER IMPRESSIONS THAT HIS APPEAL WOULD BE TAKEN FOR HEARING BY CIT(A) ONLY AFTER 30 TH JUNE, 2018. THEREFORE, THE ASSESSEE COULD NOT APPEAR BEFORE THE LEARNED CIT(A) ON THE DATE OF HEARING THAT IS ON 25.06.2018. THESE FACTS WERE NOT DISPUTED BY THE LEARNED DR FOR THE REVENUE. 4. ON THE OTHER HAND, LEARNED DR FOR THE REVENUE HAS FAIRLY AGREED THAT SINCE THE ORDER PASSED BY THE LEARNED CIT(A) IS AN EX PARTE ORDER, THEREFORE, IT MAY BE REMITTED BACK TO THE FILE OF THE LEARNED CIT(A) FOR DE NOVO ADJUDICATION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT ASSESSEE HAS PARTICIPATED IN APPELLATE PROCEEDINGS, AS THE AR OF THE ASSESSEE HAD APPEARED ON 20 TH APRIL, 2018 AND REQUESTED FOR ADJOURNMENT, AS ADMITTED BY THE LEARNED CIT(A) IN HIS ORDER VIDE PARA NO.3 OF HIS ORDER. LEARNED COUNSEL SUBMITTED THAT ASSESSEE WAS SUPPOSED TO ATTEND THE HEARING BEFORE LEARNED CIT(A) ON 25 TH JUNE, 2018, HOWEVER, THE ASSESSEE COULD NOT REPRESENT HIS CASE AS HE BELIEVED ON THE ACTION PLAN THAT ALL COMMISSIONER (APPEALS) WOULD TAKE THE APPEAL AFTER 30.06.2018 WHEREIN TAX EFFECT WAS MORE THAN RS.10 LAKHS. THE LEARNED COUNSEL ALSO STATED THAT LEARNED CIT(A) HAS NOT EXAMINED ASSESSMENT RECORDS AND RELEVANT DOCUMENTS AND HAS NOT PASSED A SPEAKING ORDER. THEREFORE, LEARNED COUNSEL FOR THE ASSESSEE PRAYED THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION. THE LEARNED DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LEARNED COUNSEL. 6. WE NOTE THAT ASSESSEE HAS PARTICIPATED IN THE APPELLATE PROCEEDINGS, WHICH IS EVIDENT FROM THE ORDER OF LEARNED CIT(A). WE ALSO NOTED THAT THE LEARNED CIT(A) HAS NOT CONSIDERED THE ASSESSMENT ORDER AND THE MATERIALS AVAILABLE ON RECORD TO ADJUDICATE THE ASSESSEES ISSUE ON MERIT. THEREFORE, CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESSEE HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LEARNED CIT(A). WE PAGE | 3 ITA NO.715/SRT/2018 FOR A.Y. 2012-13 SHRI RADHESHYAM EXPORTS NOTE THAT IT IS A SETTLED LAW THAT PRINCIPLE OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERIT. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED ON 15/07/2021 BY PLACING RESULT ON NOTICE BOARD. S SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY SURAT / / DATE: 15/07/2021 / SKS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT