Gokul Corporation, Ahmedabad V. The Dy.CIT.,Circle-9, Ahmedabad

ITSSA 22/AHD/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9205 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-07-2010
• Assessment Year: misc
• Appeal Filed On: 24-01-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 20/07/2010 DRAFTED ON: 21/07/2010 IT(SS)A NO.22/AHD/2008 BLOCK ASSESSMENT PERIOD: 01/04/1985 TO 31/03/1995 AND 01/04/1995 TO 21/09/1995 M/S.GOKUL CORPORATION 11, OFFICERS COLONY NR. LA GAJJAR ASHRAM ROAD AHMEDABAR VS. THE DY.CIT CIRCLE-9 AHMEDABAD PAN/GIR NO. : G-314/SR-5 (APPELLANT) .. (RESPONDENT) APPELLANT BY : -NONE- RESPONDENT BY: SHRI RAJEEV AGARWAL, D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL OF THE ASSESSEE WHICH WAS FILED AGAINST AN ASSESSMENT ORDER PASSED U/S.158BC R.W.S.143(3) & 25 4 OF THE I.T. ACT, 1961 DATED 26/12/2007. 2. FIRST, FEW GROUNDS ARE IN RESPECT OF DENIAL OF NATURAL JUSTICE BY NOT GRANTING PROPER OPPORTUNITY OF HEARING AS WELL AS N OT FOLLOWING THE DIRECTIONS OF THE INCOME TAX APPELLATE TRIBUNAL. 3. HOWEVER, AT THE OUTSET, IT IS WORTH TO MENTION T HAT THE NOTICE OF HEARING WAS DISPATCHED THROUGH REGISTERED A.D. BEAR ING NO.1531 DATED 21/06/2010, BUT THE SAME WAS RETURNED BY THE POSTAL DEPARTMENT WITH IT(SS)A N O.22/AHD/2008 M/S.GOKUL CORPORATION VS. DY.CIT BLOCK PERIOD : 1/04/1985 TO 21/09/1995 - 2 - THE REMARKS LEFT. IT IS ALSO WORTH TO MENTION T HAT THIS APPEAL WAS EARLIER FIXED FOR HEARING ON 30/04/2008 AND THE SAM E WAS ADJOURNED AT THE REQUEST OF THIS APPELLANT. TODAY, I.E. ON 20/0 7/2010 THE CASE WAS CALLED BUT TILL THE RISE OF THE BENCH NO ONE HAD RE SPONDED SO THIS APPEAL REMAINED UNATTENDED. 4. FROM THE SIDE OF THE REVENUE, LEARNED DEPARTMENT AL REPRESENTATIVE SHRI RAJEEV AGARWAL HAS VEHEMENTLY C ONTENDED THAT THIS IS THE RIGHT CASE TO BE DISMISSED ON ACCOUNT OF NON -APPEARANCE FROM THE SIDE OF THIS APPELLANT BECAUSE THE APPELLANT HAPPEN ED TO BE A HABITUAL DEFAULTER IN THE PAST. HE HAS ALSO MENTIONED THAT THE RESPECTED TRIBUNAL VIDE AN ORDER [ IN ITA NOS.4407 TO 4415/AHD/1996 - BLOCK ASSESSMENT 01/04/1985 TO 31/03/1995 AND 01/04/1995 TO 21/09/19 95] DATED 02/01/2006 HAD ONCE ALREADY SET AIDE THE ASSESSMENT BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO GIVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE AND MAKE AVAILABLE THE MATERIAL UTI LIZED AGAINST THE ASSESSEE. TO FOLLOW THE DIRECTIONS OF THE RESPECT ED TRIBUNAL, THE ASSESSING OFFICER HAD GIVEN SEVERAL OPPORTUNITIES TO THIS ASSESSEE BY ISSUING NOTICES U/S.143(2) (R.W.S. 158BC OF THE I.T . ACT, 1961) AND THE LONG LIST OF THE DATES OF THE HEARING IS EVIDENT FR OM THE ASSESSMENT ORDER ITSELF. FINALLY, THE ASSESSMENT WAS MADE BY THE AS SESSING OFFICER WITH THE FOLLOWING REMARKS. THEREFORE, THE ASSESSEE SHOULD HAVE ATTENDED THE P ROCEEDINGS EITHER PERSONALLY OR THROUGH HIS AUTHORIZED REPRESE NTATIVE ON THE SCHEDULE DATES OF HEARING. IN THE PRESENT CASE, TH E ASSESSEE WAS GIVEN SEVERAL OPPORTUNITIES OF BEING HEARD BUT THE ASSESSEE DID NOT IT(SS)A N O.22/AHD/2008 M/S.GOKUL CORPORATION VS. DY.CIT BLOCK PERIOD : 1/04/1985 TO 21/09/1995 - 3 - ATTEND ON THE SPECIFIC DATES AND EVEN HIS AUTHORIZE D REPRESENTATIVE THOUGH ATTENDED DID NOT ASK FOR ANY SPECIFIC INSPEC TION OF THE INCOME TAX RECORDS, THE SEIZED MATERIAL OR THE STAT EMENTS ETC. RECORDED DURING THE SEARCH PROCEEDINGS AS PER ORDER SHEET MAINTAIN ON RECORDS. ON THE CONTRARY, THE ASSESSE E SOUGHT ADJOURNMENTS AND TO BE SPECIFIC, DID NOT ATTEND ON 07/12/2007 AND 14/12/2007; THUS THE ASSESSEE HIMSELF REMAINED ABSE NT ON THESE DATES. THEREFORE, IT IS ON THE PART OF THE ASSESSE E THAT HE SHOULD HAVE BEEN PRESENT ON THE SCHEDULED DATES AND SHOULD HAVE COMPLIED WITH THE NOTICES PARTICULARLY THE NOTICE U /S.142(1) WHICH REQUIRES THE SPECIFIC DETAILS TO BE FURNISHED. CO NSIDERING THE NON- COMPLIANCE, PENALTY PROCEEDINGS U/S.271(1)(B) OF TH E I T ACT ARE SEPARATELY ISSUED. 4.1. THIS IS ONE OF THOSE RARE CASES WHERE THE RECO RDS ITSELF INDICATE THAT THE LITIGANT IS NOT SERIOUS ABOUT HIS LITIGATION. IN THE PAST A NOTICE WAS SERVED ON THE ASSESSEE ON THE SAME ADDRESS AND HE H AS ACKNOWLEDGED THE SAME BY MOVING AN APPLICATION SEEKING THEREIN AN AD JOURNMENT WHICH WAS ACCORDINGLY GRANTED. AS FAR AS THE PRESENT NO TICE IS CONCERNED, IT WAS RETURNED WITH THE REMARKS LEFT. IF AT ALL, T HIS APPELLANT HAS SHIFTED FROM THE ADDRESS MENTIONED IN FORM NO.36, I.E. FOR M OF APPEAL TO THE APPELLATE TRIBUNAL, THEN IT WAS THE DUTY OF THE APP ELLANT TO INFORM THE NEW ADDRESS, HOWEVER, THERE IS NO SUCH INFORMATION ON RECORD. AS FAR AS THE CONDUCT AND THE PAST HISTORY OF THE CASE IS CON CERNED, IT APPEARS THAT IN THE FIRST ROUND OF APPEAL FOR THIS VERY BLOCK PE RIOD THE APPELLANT MUST HAVE RAISED AN OBJECTION OF DENIAL OF NATURAL JUSTI CE ON THE GROUND OF INSUFFICIENT OPPORTUNITY OF HEARING. THE RESPECTED CO-ORDINATE BENCH IT(SS)A N O.22/AHD/2008 M/S.GOKUL CORPORATION VS. DY.CIT BLOCK PERIOD : 1/04/1985 TO 21/09/1995 - 4 - BEING CONSIDERATE HAD DIRECTED VIDE ORDER DATED 02/ 01/2006 (SUPRA) AS FOLLOWS (LIFTED FROM THE IMPUGNED ASSESSMENT ORDER) : THE PROPER ORDER TO BE PASSED IN SUCH A CASE WOULD BE TO SET ASIDE THE ASSESSMENT AND TO DIRECT THE ITO TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH THE PROCEDURE PRESCRI BED BY LAW. IT WOULD NOT BE CORRECT MERELY TO UPHOLD THE ASSESS MENT AND DIRECT THE ITO TO MAKE APPROPRIATE MODIFICATIONS. WE ACCO RDINGLY SET ASIDE THE ASSESSMENT WITH THE DIRECTION TO MAKE IT AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE AN D MAKING THE MATERIAL AVAILABLE WHICH IS TO BE UTILIZED AGAINST THE ASSESSEE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE FIND MERI T IN THE ARGUMENTS A.O. TO BE FRAMED AFRESH AFTER GIVING ASS ESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND CONSIDERING MATERIAL , SUBMISSIONS AND CONTENTION OF THE ASSESSEE AND BY PASSING APPRO PRIATE SPEAKING ORDERS. 5. SINCE THERE WERE CERTAIN SPECIFIC DIRECTIONS T O GRANT PROPER OPPORTUNITY OF HEARING TO THIS APPELLANT, THEREFORE , THE ASSESSING OFFICER WAS CONSCIOUS AND, HENCE, GRANTED NUMBER OF OPPORTU NITIES OF HEARING BY ISSUING SEVERAL SHOW-CAUSE NOTICES. BECAUSE OF NON -COMPLIANCE FROM THE SIDE OF THIS APPELLANT, THE ASSESSING OFFICER WAS L EFT WITH NO OPTION BUT TO DECIDE THE CASE ON MERITS AS WE HAVE SEEN FROM THE ASSESSMENT ORDER AS ALSO A PARAGRAPH REPRODUCED ABOVE. ALL THESE FACTS AND THE BACKGROUND OF THE CASE THUS CLEARLY INDICATE THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE THIS APPEAL, THEREFORE, WE ARE ALSO LEFT WIT H NO OPTION BUT TO DISMISS THIS APPEAL EX-PARTE ON ACCOUNT OF NON-ATTENDANCE OF THE IT(SS)A N O.22/AHD/2008 M/S.GOKUL CORPORATION VS. DY.CIT BLOCK PERIOD : 1/04/1985 TO 21/09/1995 - 5 - APPELLANT. THEREFORE, IN VIEW OF HON'BLE MADHYA PRADESH HIGH C OURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HO LKA VS. CWT (1997) 223 ITR 480 (M.P.) AND OF HON'BLE DELHI TRIBUNAL DECISION IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD. 38 ITD 320 (DELHI), WE DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE . 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 23/ 07 /2010. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23 / 07 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-CONCERNED 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD