Smt. Shruti R.Desai, Mumbai V. The Dy.CIT., Cent.Circle-1, Baroda

ITSSA 25/AHD/2006

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9092 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2013
• Assessment Year: misc
• Appeal Filed On: 27-01-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLY JINDAL
• Assessee Lawyers: G P MEHTA
• Keywords: Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNT ANT MEMBER SMT. SHRUTI R. DESAI, MUMBAI PAN NO. (APPELLANT) VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, AYAKAR BHAVAN, BARODA (RESPONDENT) REVENUE BY: SRI SHELLY JINDAL, CIT-D.R . ASSESSEE BY: SRI G.P. MEHTA A.R. DATE OF HEARING : 08-04-2013 DATE OF PRONOUNCEMENT : 19-04-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THE ASSESSEE IN THIS APPEAL IS AGGRIEVED BY THE AC TION OF THE LD. CIT(A) IN TREATING THE APPEAL FILED BY HIM BEFORE H IM AS NON-MAINTAINABLE. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED AN APPEAL ON 30-01-2004 AGAINST THE ORDER OF LD. CIT(A) OF A.O. DATED 31-12 -2003. THE TAX DUE AS PER THE INCOME TAX RETURNED WAS NOT PAID AT THE TIM E OF FILING OF APPEAL NOR DURING THE HEARING OF THE APPEAL. THE LD. CIT(A) I NVOKING THE PROVISIONS OF IT(SS)A NOS. 25/AHD/2006 BLOCK PERIOD:-01-04-1995 TO 19-12-2001 I.T.(SS)A NO.25/AHD/2006 A.Y. BLOCK PERIOD PAGE NO SHRUTI R. DESAI VS. DCIT 2 SECTION 249(4)(A) DISMISSED THE APPEAL VIDE ORDER D ATED 13-02-2004 SUBSEQUENTLY, THE ASSESSEE PAID THE DUE TAX ALONG W ITH PRAYER FOR CONDO NATION OF DELAY IN FILLING OF APPEAL AS DUE TO SEVE RED FINANCIAL POSITION, SHE WAS NOT ABLE TO PAY THE TAX AND THAT THE TAXES ON A DMITTED INCOME BEING PAID, THE DEFECT WHICH EXITED AT THE TIME OF FILING OF AP PEAL ON 30-01-2004 BEING CURED, THE APPEAL FILED ON 03-02-2005 REQUIRED TO B E ADMITTED BY CONDONING THE DELAY AND THE RELIEFS PRAYED REQUIRED TO BE CON SIDERED. LD. CIT(A) HELD THAT THE POWER OF RESTORING THE APPEAL TO THE FILE OF THE CIT(A) IS IN THE REALM OF HONBLE ITAT AND CIT(A) HAS NO POWER TO RE CALL THE ORDER AND THEREFORE THE APPEAL WAS REJECTED BY ORDER DATED 23 -12-2005. 3. AGGRIEVED BY THIS ORDER OF LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE US. 4. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT ON SIMILAR FACTS IN THE CASE OF ASSESSEES DAUGHTER MU MBAI BENCH OF TRIBUNAL IN IT(SS)A NO. 24 ALLOWED THE APPEAL OF THE ASSESSEE A ND DIRECTED THE LD. CIT(A) TO DECIDE THE APPEAL FILED BY THE ASSESSEE O N MERIT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. HE, THEREFORE, PRAYED THAT FOLLOWING THE ORDER OF MUMBAI BENCH SIMILAR RE LIEF MAY KINDLY BE GIVEN TO THE ASSESSEE. LD. D.R. DID NOT SERIOUSLY OBJECT TO THIS PRAYER OF THE LEARNED COUNSEL FOR THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND IN THIS CASE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(A) WAS DISMISSED BY HIM ONLY ON THE GROUND THAT TAX DUE ON RETURN OF INCOME WAS NOT PAID AT THE TIME OF FILING OF THIS APPEAL. SINCE SUBSEQUENTLY THE T AX DUE HAD ADMITTEDLY BEEN I.T.(SS)A NO.25/AHD/2006 A.Y. BLOCK PERIOD PAGE NO SHRUTI R. DESAI VS. DCIT 3 DEPOSITED BY THE ASSESSEE, THE RATIO AS LAID DOWN I N THE CASE OF MUMBAI BENCH IN IT(SS)A NO.24/AHD/2006 (SIC-IT(SS)A/MUM/2 006) DATED 13-02- 2013 IS DIRECTLY APPLICABLE TO THE FACTS OF THIS CA SE WHEREIN ON SIMILAR FACTS FOLLOWING WAS HELD:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN TH E LIGHT OF MATERIAL PLACED BEFORE US. THE APPEAL FILED BY THE ASSESSEE WAS EARLIER DISPOSED OF BY CIT (APPEALS) VIDE HIS ORDER DATED 13' H FEBRUARY, 2004 ON THE GROUND OF APPLICATION OF SECT ION 249(4)(A). THE ASSESSEE PLEADED FINANCIAL CONTINGENCY TO MAKE THE PAYMENT OF TAX ON RETURNED INCOME. HOWEVER, SUBSEQUENT OF PASSING THE ORDER DATED 13 TH FEBRUARY, 2004, ASSESSEE HAS MADE THE PAYMENT OF TA X ON RETURNED INCOME WHICH IS AMOUNTED TO RS.6,78,456/- ON 30 TH JUNE, 2004, COPY FOR SUCH RECEIPT HAS ALREADY BEEN FILED. THE ASSESS EE REQUESTED THE LEARNED CIT (APPEALS) FOR RECALLING OF THE ORDER AS THE DEFECT OF NON- PAYMENT OF TAX ON RETURNED INCOME WAS REMOVED. HOWE VER, LEARNED CIT (APPEALS) AFTER DISTINGUISHING AFOREMENTIONED D ECISION OF AHMEDABAD ITAT HAS AGAIN DISMISSED THE APPEAL FILED BY THE ASSESSEE ON GROUND OF APPLICATION OF SECTION 249(4). IN THE SECOND DECISION WHICH IS RENDERED BY COORDINATE BENCH OF MUMBAI ITA T, A PROPOSITION HAS BEEN LAID DOWN THAT CIT (APPEALS) S HOULD REVIVE THE APPEAL EARLIER DISMISSED ON ACCOUNT OF APPLICATION OF SECTION 249(4), IF ASSESSEE HAS REMOVED THE DEFECT OF PAYMENT OF TA X ON RETURNED INCOME. NO CONTRARY DECISION HAS BEEN BROUGHT TO OU R NOTICE. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF C OORDINATE BENCH IN THE CASE OF BHUMIRAJ CONSTRUCTIONS VS. ADDL CIT (SU PRA), WE SET ASIDE THE IMPUGNED ORDERS OF LEARNED CIT (APPEALS) VIDE W HICH THE APPEAL FILED BY THE ASSESSES HAS BEEN DISMISSED ON ACCOUNT OF APPLICATION OF SECTION 249(4) AND THE MATTER IS RESTORED BACK TO T HE FILE OF LEARNED CIT(APPEALS) FOR DISPOSAL OF THE APPEAL ON MERITS A S THE ASSESSEE HAS ALREADY MADE THE PAYMENT OF TAXES ON RETURNED INCOM E. WITH THESE OBSERVATIONS, WE ALLOW THE APPEAL FILED BY THE ASSE SSEE AND DIRECT THE LEARNED CIT (APPEALS) TO DECIDE THE APPEAL FILED BY THE ASSESSEE ON MERITS AFTER GIVING THE ASSESSEE A REASONABLE OPPOR TUNITY OF HEARING. I.T.(SS)A NO.25/AHD/2006 A.Y. BLOCK PERIOD PAGE NO SHRUTI R. DESAI VS. DCIT 4 6. IN VIEW OF THE ABOVE, THE MATTER IS RESTORED BAC K TO THE FILE OF LD. CIT(A) FOR DISPOSAL OF THE APPEAL OF THE ASSESSEE O N MERITS AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A. MOHAN ALANKAMONY) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 19 /04/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#