Shri Jayantkumar N. Patel, Bhavnagar V. The ACIT.,Circle-1, Bhavnagar

ITA 901/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0361 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-08-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 10-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH C CC C BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI T.K.SHARMA T.K.SHARMA T.K.SHARMA T.K.SHARMA, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER AND AND AND AND SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING:6-8-2010 DRAFTED ON: 6-8-2010 ITA NO. 901 /AHD/ 2008 ASSESSMENT YEAR :2004-05 SHRI JAYANTKUMAR N. PATEL, PLOT NO.2214/B. C-1. MANAN, HILL DRIVE, BHAVNAGAR. VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, AAYAKAR BHAVAN, BHAVNAGAR. PAN/GIR NO. : AAQPP4655Q (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI TUSHAR HEMANI RESPO NDENT BY: SHRI K.M. MAHESH, SR.D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST L EARNED COMMISSIONER OF INCOME TAX (APPEALS)-XX, AHMEDABAD, DATED 26-11- 2007. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF THE A SSESSEE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERR ED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER LEVYING PENALTY OF `.1,35,100/- UNDER SECTION271(1)(C) OF THE ACT. 3. AT THE OUTSET THE LEARNED AUTHORISED REPRESENTAT IVE OF THE ASSESSEE SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE ON T HE VERY FIRST DAY OF HEARING WITHOUT AFFORDING OPPORTUNITY OF HEARING AN D APPRECIATING THAT THERE WAS MARRIAGE IN THE FAMILY OF ADVOCATE AND TH EREFORE THE ADVOCATE COULD NOT REMAIN PRESENT ON THE DATE OF HE ARING. THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF T HE LEARNED - 2 - COMMISSIONER OF INCOME TAX (APPEALS) FOR RE-ADJUDIC ATING THE ISSUES INVOLVED IN THE APPEAL OF THE ASSESSEE. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT OBJECT TO THE ABOVE SUBMISSION OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT THE APPEA L WAS FIXED FOR HEARING BY THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS) ON 20- 11-2007. THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS OBSERVED IN PARAS-2 OF HIS ORDER THAT NONE ATTENDED ON THE DATE OF HEARING FIXED AND NO WRITTEN SUBMISSION/ADJOURNMENT APPLICATION WAS FILED. HENCE HE PROCEEDED TO DECIDE THE APPEAL OF T HE ASSESSEE ON MERITS CONSIDERING THE MATERIAL AVAILABLE ON RECORD . THUS, BEFORE PASSING THE ORDER BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) THE ASSESSEE DID NOT HAVE ANY OPPORTUNITY TO PRESENT ITS CASE. IT IS FURTHER OBSERVED THAT THE APPEAL WAS F IXED FOR HEARING FOR THE FIRST TIME ON 20-11-2007 AND WAS DECIDED EX-PAR TE QUA THE ASSESSEE ON THE VERY SAME DAY. IN THE ABOVE FACTS A ND CIRCUMSTANCES OF THE CASE IN OUR OPINION ONE MORE OPPORTUNITY SHO ULD BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED DEPARTMENTAL REPR ESENTATIVE HAS ALSO NOT OBJECTED TO THE PRAYER OF THE ASSESSEE AT THE TIME OF HEARING TO GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO PR ESENT ITS CASE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS). THEREFORE, WE SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORE THE MATTER TO HIS FILE TO RE- ADJUDICATE THE APPEAL OF THE ASSESSEE AFTER ALLOWING REASONABLE OPPORTUNI TY OF HEARING TO BOTH THE PARTIES. THE ASSESSEE IS DIRECTED TO SUO-M OTO APPEAR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WIT HIN ONE MONTH FROM THE DATE OF THIS ORDER FOR FIXING THE APPEAL F OR HEARING. THE ASSESSEE IS FURTHER DIRECTED TO RENDER FULL CO-OPER ATION TO THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BY FILING ALL THE DETAILS AND - 3 - PARTICULARS AS AND WHEN CALLED UPON TO DO SO BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS) IS DIRECTED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON THIS THE 04 TH DAY OF AUGUST, 2010. SD/- SD/- (T.K (T.K (T.K (T.K. . . . SHARMA) SHARMA) SHARMA) SHARMA) ( (( ( N.S. SAINI ) N.S. SAINI ) N.S. SAINI ) N.S. SAINI ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 4 TH DAY OF AUGUST, 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 4-8-2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 4-8-2010 ------- ------------ 3. DRAFT PROPOSED & PLACED 4-8-2010 -------------- ----- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED --------------- ----- -------------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- -----------------