Kuntal Maheshkumar Gandhi, Ahmedabad V. The ITO, Ward-5(3)(1), Ahmedabad

ITA 750/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4346 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 30-09-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 153C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (CONDUCTING THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NOS.750-752/AHD/2019 (ASSESSMENT YEARS: 2010-11&2011-12) KUNTAL MAHESHKUMAR GANDHI D-404, 5 TH FLOOR, DHARNIDHAR TOWER, OPP. DHARNIDHAR JAIN TEMPLE, PALDI, AHMEDABAD- 380007 VS. ITO WARD-5(3)(1) AHMEDABAD [PAN NO. AHYPG5328C] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI P. D. SHAH, AR RESPONDENT BY : SHRI PURUSHOTTAM KUMAR , SR. DR DATE OF HEARING: 30/09/2021 DATE OF PRONOUNCEMENT: 04/10/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE BUNCH OF APPEAL PREFERRED BY THE ASSESSEE IS DI RECTED AGAINST THE ORDER DATED 26.03.2019 PASSED BY THE LD. CIT(A)-5, AHMEDABAD AR ISING OUT OF THE ORDER DATED 30.10.2017 PASSED BY THE ITO, WARD-5(3)(1), AHMEDAB AD UNDER SECTION 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961 IN ITA NO. 750/AHD/2019 FOR A.Y. 2010-11. THE OTHER APPEALS IN ITA NOS. 751-752/AHD/2019 FOR A.Y. 2010- 11 & 2011-12 ARE DIRECTED AGAINST THE ORDER DATED 26.03.2019 PASSED BY THE CIT(A)-5, AHMEDABAD ARISING OUT OF THE PENALTY ORDER DATED 29.08.2016 PASSED BY THE ITO, W ARD-5(3)(1), AHMEDABAD UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED AS TO THE ACT) FOR A.Y. 2010-11 & 2011-12 RESPECTIVELY. SINCE ALL THE APPEALS RELATE TO THE SAME ASSESSEE, THESE ARE HEARD ANALOGOUSLY AND ARE BEING DISPOSED OF BY A COMMON ORDER. - 2 - ITA NOS.750-752/AHD/2019 KUNTAL MAHESHKUMAR GANDHI VS. ITO A.Y. 2010- 11 & 2011-12 ITA NO. 750/AHD/2019(A.Y. 2010-11):- 2. THIS ORDER UNDER APPEAL HAS BEEN PASSED UNDER SE CTION 144 R.W.S. 147 OF THE ACT SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE BEFOR E THE LD. CIT(A). IN FACT, SEVEN NOTICES WERE ISSUED TO THE ASSESSEE BUT WITHOUT RES ULT. IT FURTHER APPEARS THAT THE ASSESSEE DID NOT APPEAR BEFORE THE LD. AO DURING THE ASSESSM ENT PROCEEDING AS WELL. THE ORDER OF ADDITION THUS BEEN CONFIRMED BY THE LD. CIT(A). TH E ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE REASON FOR NON-APPEARANCE BEFORE THE AU THORITIES BELOW. 3. HOWEVER, AT THE TIME OF HEARING OF THE INSTANT A PPEAL THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT SINCE THE MATTER WAS NOT DISPOSED OF BY THE FIRST APPELLATE AUTHORITY ON THE MERIT OF THE ISSUE THE S AME BE SET-ASIDE TO FILE OF THE LD. CIT(A) FOR FRESH CONSIDERATION. 4. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE AUTHORITIES BELOW. 5. WE FIND ALL ALONG AND ALL THROUGH THE ASSESSEE W AS NOT VIGILANT ABOUT THE PROCEEDING PENDING BEFORE THE AUTHORITIES BELOW. N O EXPLANATION ON THE SAME IS ALSO FORTHCOMING. WE DO NOT APPRECIATE SUCH CONDUCT OF THE ASSESSEE BEFORE THE REVENUE AUTHORITIES. HOWEVER, FOR THE ENDS OF JUSTICE WE C ONSIDER THE MATTER TO BE REMITTED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION OF THE MATT ER. HOWEVER, HAVING REGARD TO THE CONDUCT OF THE ASSESSEE WE ALSO IMPOSE A COST OF RS . 20,000/- AGAINST THE ASSESSEE WHICH IS DIRECTED TO BE DEPOSITED TO THE DEPARTMENT WITHI N SIX WEEKS FROM DATE. THE LD. CIT(A) IS FURTHER DIRECTED TO HEAR THE MATTER AFRESH UPON GRANTING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE EVIDENCE W HICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE APPEAL. THE HEARING OF THE MATTER IS ALSO SUBJECT TO THE PAYMENT OF COST. WE MAKE IT CLEAR THAT THE ASSESSE E WILL NOT SEEK FOR ANY ADJOURNMENT IN THE APPEAL AND ALSO DEPOSIT THE COST AS IMPOSED BY US IN DUE TIME AS DIRECTED HEREINABOVE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. - 3 - ITA NOS.750-752/AHD/2019 KUNTAL MAHESHKUMAR GANDHI VS. ITO A.Y. 2010- 11 & 2011-12 751&752/AHD/2019(A.Y. 2010-11 & 2011-12):- 7. BOTH THE APPEALS ARE DIRECTED AGAINST THE ORDER DATED 26.03.2019 PASSED BY THE LD. CIT(A)-5, AHMEDABAD ARISING OUT OF THE PENALTY ORDE R DATED 29.08.2016 RESPECTIVELY PASSED BY THE ITO , WARD5(3)(1), AHMEDABAD UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT) FO R A.Y. 2010-11 & 2011-12 RESPECTIVELY. 8. HOWEVER, IT APPEARS THAT THE QUANTUM APPEAL HAVE BEEN ALLOWED BY THE CIT(A)-12, AHMEDABAD HOLDING INITIATION OR PROCEEDING UNDER SE CTION 153C OF THE ACT TO BE UNJUSTIFIED AND NOT IN ACCORDANCE WITH LAW BY SEPAR ATE ORDER ISSUED UNDER ORDER DATED 16.08.2021. 9. THE LD. COUNSEL APPEARING FOR THE ASSESSEE ON TH E PREMISE SUBMITTED THAT SINCE THE VERY FOUNDATION OF THE PENALTY APPEAL HAS COLLAPSED , THE PENALTY HAS LOST ITS FORCE AND HENCE BECOME INFRUCTUOUS. CONSIDERING THE ABOVE SU BMISSIONS WE DISMISS THE APPEALS AS INFRUCTUOUS. 10. IN THE COMBINED RESULT, I) ITA NO. 750/AHD/2019- APPEAL PREFERRED BY THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. II) ITA NOS. 751-752/AHD/2019- APPEALS PREFERRED B Y THE ASSESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 04 / 10 /20 21 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 04/10/2021 TANMAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE PCIT- AHMEDABAD. - 4 - ITA NOS.750-752/AHD/2019 KUNTAL MAHESHKUMAR GANDHI VS. ITO A.Y. 2010- 11 & 2011-12 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY // / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 30.09.2021 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30.09.2021 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 01.10.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 04.10.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER