Smt. Daksha P.Shah, Baroda V. The Income tax Officer,Ward-3(1), Baroda

ITA 962/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9431 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K
• Keywords: Opportunity of being heard; Principle of natural justice; Non compliance
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE S/SHRI KUL BHARAT, JM, & MANISH BORAD, AM . ITA NO.962 /AHD/2013 ASST. YEAR: 2004-05 SMT. DAKSHA P. SHAH, 2 ND FLOOR, MEGHDHANUSH, RACE COURSE, ALKAPURI, VADODARA. VS. ITO, WD-3(1), VADODARA. APPELLANT RESPONDENT PAN AJOPS 2924C APPELLANT BY NONE RESPONDENT BY SHRI A. K. PANDEY, SR.DR DATE OF HEARING: 25/2/2016 DATE OF PRONOUNCEMENT: 02/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) II, BARODA DATED 10.01.2011. ASSESSMENT WAS FRAMED U/S 143(3) OF INCOME-TAX ACT, 1961 (IN SHORT THE ACT) O N 27.12.2006 BY ITO, WD-3(1), VADODARA. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESSEE:- ALL THE GROUNDS OF APPEAL IN THIS APPEAL ARE MUTUAL LY EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER, 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN PASSING THE EX-PARTE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. ITA NO. 962/AHD/2013 ASST. YEAR 2004-05 2 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN DISALL OWING INTEREST ON BORROWED FUNDS OF RS.1,12,868/- UTILIZED FOR PURCHA SE OF SHARES AND CLAIMED UNDER THE HEAD SHORT TERM CAPITAL GAIN. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN INITIATING PENALTY PROCEEDINGS U/S 271(1) (C) OF INCOME TAX ACT,1961. 4. THE TEAMED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN CHARGING I NTEREST U/S 234B, 234C & 234D OF THE INCOME TAX ACT, 1961. 5. YOUR APPELLANT CRAVES THE RIGHT TO ADD TO OR ALT ER, AMEND, SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. SHE IS A RETIRED BANK EMPLOYEE OF BANK OF BARODA & SHE FIL ED THE RETURN OF INCOME ON 21.09.2004 DECLARING INCOME OF RS.2,92,02 6/- IN ADDITION TO LONG TERM CAPITAL GAIN OF RS.16,03,952/-. THE RE TURN WAS PROCESSED U/S 143(1) OF THE ACT ON 18.05.2005. THE CASE WAS S ELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE ACT WAS ISSUE D ON 2.8.2005 AND DULY SERVED UPON THE ASSESSEE. IN RESPONSE TO NOTIC E THE ASSESSEE HAS SHOWN NET PENSION INCOME OF RS.63,352/- AFTER C LAIMING STANDARD DEDUCTION U/S 16(1) @ RS.30,000/-. ASSESSEE HAS ALS O SHOWN INCOME FROM BANK INTEREST RS.11,423/- AND SHORT TER M CAPITAL GAIN OF RS.3,79,042/-, LONG TERM CAPITAL GAIN RS.16,03,952/ - AGAINST DEDUCTION OF RS.1,12,868/- BEING INTEREST PAID ON S ECURITIES HAS BEEN CLAIMED AND NET CAPITAL GAIN INCOME HAS BEEN SHOWN AT RS.18,70,126/-. AFTER CONSIDERING THE SUBMISSIONS O F ASSESSEE AND DETAILS FURNISHED BY THE ASSESSEE, ASSESSING OFFICE R COMPLETED THE ASSESSMENT DETERMINING TOTAL INCOME AT RS.49,79,383 /-. ITA NO. 962/AHD/2013 ASST. YEAR 2004-05 3 3. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) WHO DISMISSED THE APPEAL BY PASSING AN EX PARTE ORDER W ITH HIS OBSERVATION AS UNDER :- 2. FOLLOWING NOTICES U/S 250 OF THE INCOME-TAX ACT WERE ISSUED TO THE APPELLANT: 0 SR. NO. DATE OF NOTICES DATE OF HEARING REMARKS 1 21.07.2010 13.08.2010 NON COMPLIANCE 2 N 27.08.2010 20.09.2010 NON COMPLIANCE 3 20.09.2010 04.10.2010 NON COMPLIANCE 4 21.10.2010 03.11.2010 NON COMPLIANCE 5 22.11.2010 03.12.2010 NON COMPLIANCE 6 04.12.2010 16.12.2010 NON COMPLIANCE 7 20.12.2010 07.01.2011 NON COMPLIANCE 3. DESPITE THE FACT THAT SEVERAL OPPORTUNITIES WE RE GIVEN, THERE WAS REPEATED NON COMPLIANCE. THEREAFTER A FRESH NOTICE U/S. 250 WAS ISSUED ON 20.12.2010 TO ATTEND THIS OFFICE ON 07.01.2010. THE RE WAS AGAIN NON COMPLIANCE. 4. SINCE THERE HAS BEEN CONSISTENT AND DELIBERATE NON-COMPLIANCE. I AM LEFT WITH NO ALTERNATIVE BUT TO RELY ON THE ASSESSM ENT ORDER OF THE ASSESSING OFFICER PASSED U/S. 143(3) OF THE ACT AND DECIDE TH E MATTER ON MERIT AS PER MATERIAL AVAILABLE ON RECORD. 5. ON GOING THROUGH THE FROM NO. 35 FILED BY THE APPELLANT. IT IS SEEN THAT THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE APPEL LANT:- . I) THE LEARNED ASSESSING OFFICER ERRED IN FACT AND IN LAW IN DISALLOWING INTEREST ON BORROWED FUNDS OF RS.1,12,868/-.UTILIZE D FOR PURCHASE OF SHARES & CLAIMED UNDER THE HEAD SHORT TERM CAPITAL GAIN. II) THE LEARNED ASSESSING OFFICER ERRED IN INITIA TING PENALTY PROCEEDINGS U/S. 271(L)(C) OF THE INCOME-TAX ACT, 1961. ITA NO. 962/AHD/2013 ASST. YEAR 2004-05 4 III) THE LD. ASSESSING OFFICER HAS ERRED IN FACT AN D IN LAW IN CHARGING INTEREST U/S 234B, 234C & 234C OF THE INCOME-TAX AC T, 1961. 6. SINCE APPEAL HAS NOT BEEN PURSUED AND THERE IS N O APPARENT ERROR IN THE ORDER OF ASSESSING OFFICER, THE DISALLOWANCE MA DE ARE UPHELD. 7. IN THE RESULT, THE APPEAL IS DISMISSED. 4. AGGRIEVED, THE ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. SO WE P ROCEED TO DECIDE THE APPEAL AFTER HEARING THE LD. DR AND CONS IDERING THE MATERIAL ON RECORD. 6. WE HAVE CONSIDERED THE FACTS OF THE CASE AND CON TENTIONS OF LD. DR AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT LD. CIT(A) HAS GIVEN SEVERAL OPPORTUNITY OF HEARING TO THE ASSESSE E BY ISSUING NOTICES BUT NONE APPEARED ON BEHALF OF THE ASSESSEE AND HENCE THE LD. CIT(A) HAVING NO OTHER OPTION, AFTER CONSIDERIN G THE OBSERVATIONS OF ASSESSING OFFICER DISMISSES THE APPEAL OF ASSESS EE EX PARTE. AFTER GIVING A CAREFUL THOUGHT TO THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IN THE INTEREST OF NATURAL JUSTICE IT WILL BE JUST AND PROPER TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) WITH A DIRECTI ON TO DECIDE THE MATTER AFRESH AFTER GIVING ONE MORE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND HE WILL PASS A SPEAKING ORDER ON THE M ATTER. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD . FIRST APPELLATE AUTHORITY IN THE PROCEEDINGS BY PRODUCING MATERIAL EVIDENCES AND AUDITED FINANCIAL STATEMENTS ETC. IN SUPPORT OF HER CLAIM IN ACCORDANCE WITH LAW, SO THAT PROPER JUSTICE CAN BE DELIVERED. ITA NO. 962/AHD/2013 ASST. YEAR 2004-05 5 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MARCH, 2016 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 02/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 25/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 01/03/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 2/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: