M/s. M. Kantilal & Co., Ahmedabad V. The ACIT, Central Circle-2(2), Ahmedabad

ITSSA 55/AHD/2015

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1076 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KRISHNA MURARI SHRI S N SOPAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) ITA/IT(SS)A NO(S)/CO NOS. ASSESSMENT YEAR(S) APPEAL(S)/CO BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. ITA 2173/AHD/2011 2009-10 ACIT CENT. CIR-2(2) AHMEDABAD (REVENUE) M/S.M.KANTILAL & CO. C/O. PATEL NARENDRAKUMAR RAMANLAL A/104, SURYA PUJA APARTMENT JODHPUR, SATELLITE AHMEDABAD-380015 (ASSESSEE ) PAN:AACFM 0711C 2. IT(SS)A 54/AHD/2015 2007-08 ASSESSEE REVENUE 3. IT(SS)A 55/AHD/2015 2008-09 ASSESSEE REVENUE 4. CO NO. 48/AHD/2015 2009-10 ASSESSEE REVENUE REVENUE BY : SHRI KRISHNA MURARI, CIT-DR ASSESSEE BY : SHRI S.N. SOPARKAR, AR '# $ %& / DATE OF HEARING 30/09/2015 '()* $ %& / DATE OF PRONOUNCEMENT 30/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : ALL THESE APPEALS BY THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-III, AHMEDABAD (CIT(A) IN SHORT) PERTAINING TO IT(SS)A NO.2173/AHD/2011 (BY REVENUE) IT(SS)A NOS.54& 55/AHD/2015(BY ASSESSEE) AND CO NO.48/AHD/2015 (BY ASSESSEE) ACIT VS. M/S.M.KANTILAL & CO. AYS 2009-10, 2007-08, 2008-09 & 2009-10 RESPECTIVELY - 2 - ASSESSMENT YEARS (AYS) 2009-10, 2007-08, 2008-09 DA TED 24/06//2011 AND CROSS-OBJECTION NO.48/AHD/2015 FOR AY 2009-10 (IN ITA NO.2173/AHD/2011) BY THE ASSESSEE. SINCE COMMON I SSUES AND FACTS ARE INVOLVED IN THESE APPEALS/CO, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE HAS FILED AN AFFIDAVIT STATING TH AT ON 10/03/2015 HE WAS CALLED BY THE AO AND WAS GIVEN A NOTICE FOR HEARING ON 26/03/2015 FIXED BEFORE THE TRIBUNAL B BENCH RELEVANT TO AY 2009-1 0. THEREAFTER, HE APPLIED AND GOT CERTIFIED COPIES FROM THE TRIBUNAL ON 23/03/2015 AND FILED THE CROSS OBJECTION AGAINST THE REVENUE APPEA L RELEVANT TO ASSESSMENT YEAR 2009-10. THEREAFTER HE ALSO FILED THE APPEAL AGAINST THE CIT(APPEALS) ORDER RELEVANT TO AYS 2007-08 & 2008-0 9 ON 26/03/2015. THE APPEALS ARE I.E. ITA NOS. 54/AHD/2015 & 55/AHD/ 2015 RESPECTIVELY FOR AYS 2007-08 & 2008-09. THERE IS NO DELAY IN FI LING THE APPEALS RELEVANT TO AYS 2007-08 & 2008-09 AND CROSS-OBJECTI ON RELEVANT TO AY 2009-10 AS THE CERTIFIED COPY OF THE CIT(APPEALS)S ORDER AND APPEAL MEMO FILED BY THE REVENUE WAS RECEIVED ON 23/03/201 5 FROM THE TRIBUNAL. IT IS STATED THAT EARLIER THE ADDRESS OF THE FIRM WAS M/S.M.KANTIAL & CO. 2940-2, SATBHAI NI HAVELI, VAGH ANPOLE NAKE, ZAVERIVAD, RATANPOLE AHMEDABAD. IT IS ALSO STATED THAT THE ASSESSEE HAD IT(SS)A NO.2173/AHD/2011 (BY REVENUE) IT(SS)A NOS.54& 55/AHD/2015(BY ASSESSEE) AND CO NO.48/AHD/2015 (BY ASSESSEE) ACIT VS. M/S.M.KANTILAL & CO. AYS 2009-10, 2007-08, 2008-09 & 2009-10 RESPECTIVELY - 3 - REPRESENTED HIS CASE BEFORE THE AO WHO HAD PASSED O RDER U/S.153A OF THE OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT). SUBSEQUENTLY, THE ASSESSEE FILED APPEALS AGAINST TH E ASSESSMENT ORDERS BEFORE THE LD.CIT(A). IT IS STATED THAT BEFORE THE LD.CIT(A) NO ONE APPEARED ON BEHALF OF THE ASSESSEE AS THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING. IT IS ALSO STATED THAT DUE TO C LOSURE OF BUSINESS, ALL THE OFFICES WERE ALSO CLOSED. THEREFORE, THERE WAS NO REPRESENTATION ON BEHALF OF THE ASSESSEE BEFORE THE LD.CIT(A). UNDER THESE FACTS, IT IS STATED THAT THERE IS NO DELAY IN FILING THE APPEALS AND TH E CROSS OBJECTION. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WA S NO REPRESENTATION BEFORE THE LD.CIT(A). THE ASSESSEE OUGHT TO HAVE B EEN GIVEN AN OPPORTUNITY TO REPRESENT HIS CASE. HE SUBMITTED TH AT THE IMPUGNED ORDER MAY PLEASE BE SET ASIDE AND THE APPEALS BE RESTORED TO THE FILE OF LD.CIT(A) FOR DECISION AFRESH. 2.1. ON THE CONTRARY, THE LD.CIT-DR SHRI KRISHNA MU RARI VEHEMENTLY OPPOSED THE SUBMISSION OF THE LD.COUNSEL FOR THE AS SESSEE AND SUBMITTED THAT IT WAS INCUMBENT UPON THE ASSESSEE TO FURNISH THE CURRENT ADDRESS WHEN HE HAD HIMSELF FILED THE APPEAL. HE SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED TO TAKE ADVANTAGE OF ITS OWN NEGL IGENCE. HE SUBMITTED THAT THE ASSESSEE WAS AFFORDED SUFFICIENT OPPORTUNI TIES BUT ASSESSEE CHOSE IT(SS)A NO.2173/AHD/2011 (BY REVENUE) IT(SS)A NOS.54& 55/AHD/2015(BY ASSESSEE) AND CO NO.48/AHD/2015 (BY ASSESSEE) ACIT VS. M/S.M.KANTILAL & CO. AYS 2009-10, 2007-08, 2008-09 & 2009-10 RESPECTIVELY - 4 - NOT TO AVAIL THE SAME. THEREFORE, UNDER THESE FACT S, THE ASSESSEE DOES NOT DESERVE ANY INDULGENCE BY THIS TRIBUNAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE AFFIDAVIT FILED BY THE ASSESSEE. TH E ASSESSEE ON AFFIDAVIT HAS STATED THAT NOTICE OF HEARING WAS NOT RECEIVED BY THE ASSESSEE. WE FIND THAT THE LD.CIT(A) IN PARA-4.1 OF HIS APPELLAT E ORDER HAS OBSERVED AS UNDER:- 4.1. THE FOLLOWING NOTICES OF HEARING WERE ISSUED TO THE APPELLANT: DATE OF NOTICE DATE OF HEARING FIXED REMARKS 28/3/2011 8/4/2011 THE NOTICE COULD NOT BE SERVED BY THE POSTAL AUTHORITIES UNDER THE REMARKS LEFT 28/4/2011 13/5/2011 THE NOTICE COULD NOT BE SERVED BY THE POSTAL AUTHORITIES UNDER THE REMARKS LEFT 18/5/2011 7/6/2011 THE NOTICE COULD NOT BE SERVED BY THE POSTAL IT(SS)A NO.2173/AHD/2011 (BY REVENUE) IT(SS)A NOS.54& 55/AHD/2015(BY ASSESSEE) AND CO NO.48/AHD/2015 (BY ASSESSEE) ACIT VS. M/S.M.KANTILAL & CO. AYS 2009-10, 2007-08, 2008-09 & 2009-10 RESPECTIVELY - 5 - AUTHORITIES UNDER THE REMARKS LEFT 4. SINCE THE NOTICE OF HEARING COULD NOT BE SERVED UPON THE ASSESSEE, THE LD.CIT(A) PROCEEDED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FACTS OF THE CASE AND WE ARE OF THE VIEW THAT THE T AX-PAYERS SHOULD BE PROVIDED AN OPPORTUNITY TO REPRESENT ITSELF BEFORE THE FIRST APPELLATE AUTHORITY TO DEFEND ITS CASE. IN THIS CASE, ADMITT EDLY, THE IMPUGNED ORDER HAS BEEN PASSED IN THE ABSENCE OF THE ASSESSEE. WE AGREE WITH THE CONTENTION OF THE LD.CIT-DR THAT THE ASSESSEE OUGHT TO HAVE FURNISHED THE CHANGED ADDRESS TO THE APPELLATE AUTHORITY. THEREF ORE, WE HEREBY IMPOSE A COST OF RS.10,000/- TO THE ASSESSEE FOR THE NEGLI GENCE AND WASTAGE OF VALUABLE TIME OF THE LD.CIT(A). TO MEET THE ENDS O F JUSTICE, WE HEREBY SET ASIDE THE IMPUGNED APPELLATE ORDER AND RESTORE THE APPEALS PERTAINING TO THE AYS 2007-08, 2008-09 & 2009-10 TO THE FILE O F LD.CIT(A) FOR DECISION AFRESH SUBJECT TO PAYMENT OF COST OF RS.10 ,000/-. ACCORDINGLY, CROSS-OBJECTION IS ALSO ALLOWED FOR STATISTICAL PUR POSES. NEEDLESS TO SAY THAT THE ASSESSEE WOULD CO-OPERATE IN THE APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A) AND FURNISH THE INFORMATION/EVIDENCE AS A ND WHEN CALLED FOR BY THE LD.CIT(A), FOR PROPER ADJUDICATION OF THE AP PEALS. IT(SS)A NO.2173/AHD/2011 (BY REVENUE) IT(SS)A NOS.54& 55/AHD/2015(BY ASSESSEE) AND CO NO.48/AHD/2015 (BY ASSESSEE) ACIT VS. M/S.M.KANTILAL & CO. AYS 2009-10, 2007-08, 2008-09 & 2009-10 RESPECTIVELY - 6 - 5. IN THE RESULT, ALL THE APPEALS AND CROSS-OBJECTI ON ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 30 TH DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED / 11 /2015 /%..', .'../ T.C. NAIR, SR. PS !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. 01 / THE APPELLANT 2. 2301 / THE RESPONDENT. 3. 45467 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-III, AHMEDABAD 5. 9: 2'67 , % 67* , 5 / DR, ITAT, AHMEDABAD 6. :; <# / GUARD FILE. / BY ORDER, 39 2 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 6.11.15 (DICTATION-PAD 9 - PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..6.11.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.30.11.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.11.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER