Shri Ajay J. Mehta, Baroda V. The ACIT, Circle -3, Baroda

ITSSA 219/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3151 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-04-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 30-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER SN IT(SS)A NO. AY APPELLANT RESPONDENT 1 214/AHD/2013 1998-99 AJAY J. MEHTA, 303, YOGI CENTER, ELLORA PARK, BARODA-390023 PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 2 215/AHD/2013 1999-00 AJAY J. MEHTA, BARODA PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 3 216/AHD/2013 2000-01 AJAY J. MEHTA, BARODA PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 4 217/AHD/2013 2001-02 AJAY J. MEHTA, BARODA PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 5 218/AHD/2013 2002-03 AJAY J. MEHTA, BARODA PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 6 219/AHD/2013 2004-05 AJAY J. MEHTA, BARODA PAN : ACPPM 9922 L ACIT, CIRCLE-3, BARODA 7 220/AHD/2013 1998-99 NIKHIL SURESH RATHOD, LEGAL HEIR OF LATE SURESH B. RATHOD, 22, GAUTAMNAGAR SOCIETY, RACE COURSE, BARODA-7 PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 8 221/AHD/2013 1999-00 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 9 222/AHD/2013 2000-01 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 10 223/AHD/2013 2001-02 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 11 224/AHD/2013 2002-03 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 12 225/AHD/2013 2003-04 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA 13 226/AHD/2013 2004-05 SURESH B. RATHOD, BARODA PAN : ABSPR 2926 B DCIT, CIRCLE-2 (2), BARODA ASSESSEE(S) BY : SHRI SAKAR SHARMA, AR REVENUE BY : MS. VIBHA BHALLA, CIT-DR / DATE OF HEARING : 13/04/2017 / DATE OF PRONOUNCEMENT: 18/04/2017 / O R D E R IT(SS)A NOS. 214-219 & 220 -226 OF 2013 ASSESSEES : AJAY J MEHTA & SURESH B RATHOD AYS : 1998-99 TO 2004-05 - 2 PER MANISH BORAD, ACCOUNTANT MEMBER: THIS BUNCH OF THIRTEEN APPEALS BY TWO DIFFERENT ASS ESSEES (SIX APPEALS IN THE CASE OF SHRI AJAY J. MEHTA VIDE IT(SS)A NOS. 21 4 TO 219/AHD/2013 FOR AYS 1998-99 TO 2002-03 & 2004-05 AND SEVEN APPEALS IN T HE CASE OF SHRI SURESH B. RATHOD VIDE IT(SS)A NOS. 220 TO 226/AHD/2013 FOR AY S 1998-99 TO 2004-05) HAS BEEN FILED AGAINST SEPARATE ORDERS OF THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA. SINCE THESE APPEALS INVOLVE COMMON ISSUES, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDS THAT THE ASSESSEE(S) COULD NOT REPRESENT HIS CASE AT ALL BEF ORE THE LD. FIRST APPELLATE AUTHORITY DUE TO THE REASON THAT AT THE RELEVANT TI ME AN ARREST WARRANT WAS ISSUED AGAINST THE ASSESSEE VIZ. SHRI AJAY MEHTA ON ACCOUNT OF SOME CRIMINAL CASES AGAINST HIM, WHICH IS ALSO EVIDENT FROM THE C OPY OF ORDER DATED 02.06.2016 IN THE CASE OF SUPER INDUSTRIES VS. DCIT VIDE IT(SS )A NO.210 TO 213/AHD/2013 FOR AYS 1998-99, 1999-2000, 2001-02 AND 2004-05 AND THE COPY OF THE SAME IS PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE , THEREFORE, PLEADED THAT THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) MAY BE SET ASIDE AND MATTER MAY BE REMITTED BACK TO THE TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. 3. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIES UPON THE ORDERS OF THE AUTHORITIES BELOW AND CONTENDS THAT I NSPITE OF GIVING NUMBER OF OPPORTUNITIES, THE ASSESSEE COULD NOT REMAIN PRESEN T BEFORE THE LD. CIT(A) AND THE ASSESSEE SHOULD BE VIGILANT FOR CONDUCTING THE INCOME-TAX PROCEEDINGS BEFORE THE REVENUE AUTHORITIES. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IT IS NOTICED THAT BOTH THE ASSESSEES IN ALL THE APPEALS MENTIONED ABO VE DID NOT APPEAR EITHER IN IT(SS)A NOS. 214-219 & 220 -226 OF 2013 ASSESSEES : AJAY J MEHTA & SURESH B RATHOD AYS : 1998-99 TO 2004-05 - 3 PERSON OR THROUGH AUTHORIZED REPRESENTATIVE BEFORE THE FIRST APPELLATE AUTHORITY; AS A RESULT OF WHICH EX-PARTE ORDERS WER E PASSED. IT IS PERTINENT TO NOTE THAT THESE APPEALS ARE IN SECOND ROUND BEFORE THE TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MAIN REASON FOR BEING NON-COMPLAINT BEFORE THE LD. CIT(A) WAS BECAUSE THE ASSESSEE WAS OVER OC CUPIED IN ATTENDING VARIOUS CRIMINAL CASES IN HIS OWN CASES WHICH RESTRAINED HI M TO APPEAR ON THE GIVEN DATES BEFORE THE LD. CIT(A). WE FURTHER OBSERVE TH AT IN ONE OF THE GROUP CASES, M/S. SUPER INDUSTRIES, WHEREIN ASSESSEE SHRI AJAY MEHTA IS A PARTNER, THE CO- ORDINATE BENCH VIDE IT(SS)A NOS. 210 TO 213/AHD/201 3, VIDE ITS DECISION PRONOUNCED ON 02.06.2016 HAS RESTORED ALL THE ISSUE S TO THE FILE OF FIRST APPELLATE AUTHORITY FOR FRESH ADJUDICATION BY ACCEP TING THE CONTENTIONS OF MR. AJAY MEHTA, PARTNER OF M/S. SUPER INDUSTRIES, BY OB SERVING AS FOLLOWS:- 4. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIR CUMSTANCES, I AM OF THE VIEW THAT THE ASSESSEE HAS BEEN PREVENTED FROM PROSECUTI NG ITS APPEALS PROPERLY BEFORE THE LD. FIRST APPELLATE AUTHORITY ON ACCOUNT OF VAR IOUS CRIMINAL CASES BEING FACED BY SHRI AJAY MEHTA, ONE OF THE MAIN PARTNER O F THE ASSESSEE-FIRM. THERE MAY BE SOME NEGLIGENCE AT THE END OF THE ASSESSEE. BUT, IF I WEIGH NEGLIGENCE VIS- -VIS THE PUNISHMENT, IN THE SHAPE OF TAX LIABILITY , THEN PUNISHMENT IS DISPROPORTIONATE TO THE NEGLIGENCE COMMITTED BY THE ASSESSEE DUE TO HIS ARREST. THEREFORE, IN THE INTEREST OF JUSTICE, ONE MORE OPP ORTUNITY IS BEING GIVEN TO THE ASSESSEE TO PROSECUTE ITS CASE BEFORE THE LD. FIRST APPELLATE AUTHORITY. THEREFORE, I ALLOW ALL THE APPEALS AND RESTORE ALL THE ISSUES TO THE FILE OF THE LD. FIRST APPELLATE AUTHORITY FOR FRESH ADJUDICATION. 5. THE OBSERVATIONS MADE BY ME WILL NOT IMPAIR OR I NJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANA TION OF THE ASSESSEE. 6. IN RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSE. 5. IT IS TRUE THAT IN THE SECOND ROUND ALSO THE ASS ESSEE HAS MISERABLY FAILED TO APPEAR BEFORE THE FIRST APPELLATE AUTHORITY, WHICH AS RIGHTLY CONTENDED BY LD. DEPARTMENTAL REPRESENTATIVE, SEEMS TO BE AN INTENTI ONAL MISTAKE ON THE PART OF THE ASSESSEE TO PROLONG THE LITIGATION. HOWEVER, LO OKING TO THE FACTS THAT, FOR THE VERY SAME ISSUES IN THE SECOND ROUND THE CO-ORDINAT E BENCH HAS DECIDED TO RESTORE THE ISSUES TO THE FILE OF FIRST APPELLATE A UTHORITY; WE, ALSO RESPECTFULLY IT(SS)A NOS. 214-219 & 220 -226 OF 2013 ASSESSEES : AJAY J MEHTA & SURESH B RATHOD AYS : 1998-99 TO 2004-05 - 4 FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH AND IN THE INTEREST OF JUSTICE, AFFORD ONE MORE OPPORTUNITY TO THE ASSESSEE TO PROS ECUTE ITS CASE BEFORE THE LD. CIT(A). HOWEVER, AS IT IS THE SECOND ROUND, WE DIR ECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) ON OR BEFORE 31 ST MAY 2017. FURTHER, LD. CIT(A) SHALL AFFORD THREE EFFECTIVE OPPORTUNITIES FOR HEARING TH E CONTENTIONS OF THE ASSESSEE AND SHALL DECIDE THE ISSUES AS PER LAW. FURTHER, T HE ASSESSEE HAS ALSO UNDERTAKEN BEFORE US THAT IT WILL NOT SEEK ANY ADJO URNMENT BEFORE THE LD. CIT(A). WITH THESE DIRECTIONS, WE RESTORE ALL THE ISSUES RAISED IN THESE THIRTEEN APPEALS TO THE FILE OF THE LD. CIT(A). 6. IN THE RESULT, ALL APPEAL FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 18 TH APRIL 2017 AT AHMEDABAD. SD/- SD/- ( S.S. GODARA ) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 18/04/2017 BT BTBT BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ) ( / THE CIT(A)- 5. , ( , /DR,ITAT, AHMEDABAD, 6. . / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT.REGISTRAR) ( ITAT, AHMEDABAD