Shri Dipakbhai Kanubhai Shah, Surat V. ITO Ward3(3)(2), Surat

ITA 81/SRT/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2283 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 08-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: YOGESH GANIT
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND SHRI ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER . . ./ I.T.A NO.81/SRT/2019 [ [ / ASSESSMENT YEAR: 2015-16 SHRI DIPAKBHAI KANUBHAI SHAH, 203, RATNARAJ APARTMENT-2, RAMSHA TOWER, ADAJAN PATIYA, NEAR DHANMORA CIRCLE, SURAT- 395009 [PAN: ACIPS 3786 P VS. THE INCOME TAX OFFICER, WARD-3(2)(2), SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI YOGESH GANIT, ADVOCATE /REVENUE BY MRS. ANUPAMA SINGLA SR. DR / DATE OF HEARING: 14.10.2021 /PRONOUNCEMENT ON: 21.10.2021 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY ASSESSEES, IS DIRECTED AGAINST THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS), WHICH IN TURN ARISES OUT OF SEPARATE ASSESSMENT ORDERS PASSED BY ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, LEARNED COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF ITA NO. 81/SRT/2019 A.Y. 2015-16 2 NATURAL JUSTICE. LEARNED COUNSEL STATES THAT NOTICE OF HEARING WAS NOT SERVED ON THE ASSESSEE, DUE TO CHANGE OF ADDRESS THEREFORE, ASSESSEE COULD NOT ATTEND THE HEARING BEFORE THE LD CIT(A). LEARNED COUNSEL ALSO STATES THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE SUBMITTED WRITTEN SUBMISSIONS BEFORE THE LD CIT(A), HOWEVER, LD CIT(A) DID NOT CONSIDER THE WRITTEN SUBMISSION. THEREFORE, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 3.THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 4. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDER AND NON-SPEAKING ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 5. WE NOTE THAT THOUGH IN MOST OF THE CASES, THE ASSESSEE DID NOT APPEAR BEFORE THE LD CIT(A) DURING THE APPELLATE PROCEEDINGS, AND A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGING BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY, AS THE NOTICE OF HEARING COULD NOT BE SERVED ON THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND WRITTEN SUBMISSIONS OF THE ASSESSEE WERE NOT CONSIDERED BY THE LD CIT(A). 6. CONSIDERING THE ABOVE FACTS, WE NOTE THAT NOTICES OF HEARING WAS NOT SERVED ON ASSESSEE, THEREFORE, ASSESSEE HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT THE LD. CIT(A) DID NOT DISCUSS THE ASSESSEES CASE ON MERITS BASED ON THE MATERIAL AVAILABLE BEFORE HIM HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE ITA NO. 81/SRT/2019 A.Y. 2015-16 3 FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER ANNOUNCE ON 21/10/2021 AS PER RULE 34(5)OF INCOME TAX (APPELLATE TRIBUNAL) RULES1963. SD/- SD/- PAWAN SINGH ARJUN LAL SAINI (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) / SURAT, DATED : 21/10/2021 RAJESH KUMAR, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER // TRUE COPY // / / TRUE COPY / ASSISTANT REGISTRAR, SURAT