M/s Devi Enterprise Partner Shri K Mehfuz Ali Khan , Aandra Pradesh V. Deputy Commissioner of Income tax Central Circle-1(3), Bangalore

ITA 964/BANG/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3775 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: MAYANK JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

ITA NOS.964&966 /BANG/2017 M/S. DEVI ENTERPRISE, PARTNER SHRI K. MEHFUZ ALI KHAN, A.P. IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NOS.964&966/BANG/2017 ASSESSMENT YEARS: 2011-12 & 2010-11 RESPECTIVELY M/S. DEVI ENTERPRISE, PARTNER SHRI K MEHFUZ ALI KHAN NO.1050/H, RAILWAY GRAND TWINLANCETIMMANCHERLA GUNTAKAL, A.P.515 801 PAN NO :AAQFM5466J VS. DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-1(3) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI MAYANK JAIN, A.R. RESPONDENT BY : SMT. R. PREMI, D.R. DATE OF HEARING : 05.11.2020 DATE OF PRONOUNCEMENT : 06.11.2020 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 31.1.2017 PASSED BY LD. CIT( A)-11, BENGALURU AND THEY RELATE TO THE ASSESSMENT YEARS 2 010-11 & 2011-12. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN DISMISSING THE APPEALS OF THE ASSESSEE IN LIMINI, W ITHOUT CONDONING THE DELAY IN FILING THE APPEALS BEFORE HIM. BOTH T HE APPEALS RELATE TO THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. ITA NOS.964&966 /BANG/2017 M/S. DEVI ENTERPRISE, PARTNER SHRI K. MEHFUZ ALI KHAN, A.P. PAGE 2 OF 4 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICE THAT BOTH THE APPEALS CAME TO BE FILED BEFORE LD. CIT(A) AFTER A DELAY OF MORE THAN 17 MONTHS. THOUGH THE ASSESSEE HAS FURNI SHED A PETITION PRAYING FOR CONDONING THE DELAY, THE REASO NS GIVEN BY THE ASSESSEE WERE NOT ACCEPTED BY LD. CIT(A) TO BE REAS ONABLE AND ACCORDINGLY DISMISSED THE APPEALS OF THE ASSESSEE F OR BOTH YEARS IN LIMINI WITHOUT ADMITTING THEM. FURTHER, ON A PERUS AL OF ORDER PASSED BY LD. CIT(A), WE NOTICE THAT THE ASSESSEE W AS NOT REPRESENTED BEFORE LD. CIT(A), EVEN THOUGH THE FIRS T APPELLATE AUTHORITY HAS POSTED THE CASES FOR HEARING ON THREE OCCASIONS. 3. THE LD. A.R. SUBMITTED THAT THE PARTNERS OF THE ASSESSEE FIRM WERE FACING SEVERAL LEGAL ISSUES AND HENCE THEY COU LD NOT APPEAR BEFORE LD. CIT(A). HE SUBMITTED THAT THE LD CIT(A) HAS PASSED THE IMPUGNED ORDERS EX-PARTE, WITHOUT HEARING THE ASSES SEE. 4. WE NOTICE THAT THE LD CIT(A) HAS PASSED THE O RDER WITHOUT HEARING THE ASSESSEE, SINCE THE ASSESSEE DID NOT AP PEAR BEFORE HIM, EVEN THOUGH THREE OPPORTUNITIES WERE GIVEN. HOWEVER , THE PRINCIPLES OF NATURAL JUSTICE WARRANT THAT NO ONE SHOULD BE CO NDEMNED UNHEARD. IN THE INSTANT CASES, WE NOTICE THAT THE LD. CIT(A) HAS DISMISSED THE APPEALS OF THE ASSESSEE IN LIMINI WIT HOUT CONDONING THE DELAY IN FILING APPEALS AND ALSO WITHOUT HEARIN G THE ASSESSEE. HENCE THERE WAS NO OCCASION FOR THE LD. CIT(A) TO P ASS THE ORDERS ON MERITS. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE SHOULD BE PROVIDED WITH ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE LD. CIT (A). IN OUR VIEW, AFFORDING ONE MORE OPPORTUNITY TO THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WOULD PROMOTE CAUSE OF J USTICE. ITA NOS.964&966 /BANG/2017 M/S. DEVI ENTERPRISE, PARTNER SHRI K. MEHFUZ ALI KHAN, A.P. PAGE 3 OF 4 5. SINCE THE ASSESSEE HAS NOT APPEARED BEFORE LD. CIT(A) DESPITE GIVING 3 OPPORTUNITIES, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE IMPOSED A COST FOR ITS DELINQUENCY. ACCORDINGLY , WE IMPOSE A COST OF RS.5,000/- (RS. FIVE THOUSAND ONLY) UPON TH E ASSESSEE, WHICH SHALL BE PAID BY THE ASSESSEE TO THE CREDIT OF THE INCOME TAX DEPARTMENT AS OTHER FEES WITHIN TWO MONTHS FROM T HE DATE OF RECEIPT OF THIS ORDER. 6. SUBJECT TO THE PAYMENT OF ABOVE SAID COST OF RS. 5,000/- AS STATED ABOVE, WE SET ASIDE THE ORDERS PASSED BY LD. CIT(A) IN BOTH THE YEARS UNDER CONSIDERATION AND RESTORE ALL THE I SSUES INCLUDING THE ISSUE OF DELAY IN FILING APPEALS BEFORE HIM, TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE AS SESSEE TO EXTEND FULL COOPERATION TO LD. CIT(A) FOR EXPEDITIOUS DISP OSAL OF THE APPEALS. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH NOV, 2020 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 6 TH NOV, 2020. VG/SPS ITA NOS.964&966 /BANG/2017 M/S. DEVI ENTERPRISE, PARTNER SHRI K. MEHFUZ ALI KHAN, A.P. PAGE 4 OF 4 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.