The DCIT, Circle-4(1)(1), Ahmedabad V. Shri Gaurav S. Verma, Ahmedabad

MA 163/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7169 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Keywords: Set aside

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MISC. APPLICATION NO.163 /AHD/2019 IN ./ ITA NO.3643/AHD/2015 / ASSESSMENT YEAR: 2008-09 DCIT, CIR.4(1)(1) AHMEDABAD. VS SHRI GAURAV S. VARMA 307-308, SARTHIK SQUARE S.G. HIGHWAY AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.B. PARMAR, AR REVENUE BY : SHRI VINOD TANWANI, SR.DR / DATE OF HEARING : 19/07/2019 /DATE OF PRONOUNCEMENT : 29/07/2019 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : PRESENT MA IS DIRECTED AT THE INSTANCE OF THE REVENUE POINTING OUT APPAREN T ERROR IN THE ORDER OF THE TRIBUNAL DATED 27.9.2018 PASSED ITA NO.3643/ AHD/2015. 2. MA FILED BY THE REVENUE IS RUNNING INTO TWO-AND- HALF PAGES. IN THAT, ONE-AND-HALF PAGE REVENUE HAS REPRODUCED GROU ND TAKEN BY THE ASSESSEE IN ITS APPEAL, AND THEREAFTER PLEADED AS U NDER: 3. THE HON'BLE ITAT HAS DECIDED APPEALS OF THE ASSE SSEE IN ITA NO. 3643/AHD/2015 FOR A.Y. 2008-09. IN WHICH THE HON'BLE ITAT HAS SET ASIDE THESE ISSUES TO THE FILE OF THE ID. CIT(A) FOR FRESH HEARING. 4. IN VIEW OF THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT-3, AHMEDABAD VS ASHOKJI CHANDUJI THAKOR, R/T.A NO. 710-714 & 717 OF 2018 DATED 27.06.2018, WHEREIN IT HAS BEEN DECID ED BY THE HON'BLE GUJARAT MA NO.163/AHD/2019 - 2 - HIGH COURT THAT ITAT WAS NOT JUSTIFIED IN SETTING AS IDE THE ASSESSMENT TO THE CIT(A), WITHOUT ASSIGNING ANY REASON, WHEN THE APPE LLANT HAD FAILED TO APPEAL BEFORE THE AO AS WELL AS CIT(A) DESPITE SEVERAL OPPO RTUNITIES. THE ORDER OF THE AO/CIT(A) WAS RESTORED. THE RATIO OF THIS JUDGMENT IS APPLICABLE IN THE PRESENT CASES. 5. THE ABOVE MISTAKE IS APPARENT ON RECORD. THEREFO RE, IT IS REQUESTED THAT THE HON'BLE ITAT MAY KINDLY RECTIFY THE MISTAKE AND PAS S NECESSARY ORDER ACCORDINGLY. IT IS REQUESTED TO RESTORE BACK ASSESS EE'S APPEAL IN ITA NO. 3643/AHD/2015 FOR A.Y.2008-09 AND ADJUDICATE THE SAME ON MERITS. 6. MISCELLANEOUS APPLICATION IS BEING FILED ON THE FOLLOWING GROUND: 'HON'BLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT-3 R AHMEDABAD VS ASHOKJI CHANDUJI THAKOR, R/T.A NO. 710-714 & 717 OF 2 018 DATED 27.06.2018 HAS DECIDED THAT ITA T WAS NOT JUSTIFIED IN SETTING ASIDE THE ASSESSMENT TO THE CIT(A), WITHOUT ASSIGNING ANY REA SON, WHEN THE APPELLANT HAD FAILED TO APPEAL BEFORE THE AO AS WELL AS CIT(A) DESPITE SEVERAL OPPORTUNITIES. THE ORDER OF THE AO/CIT(A) WAS RESTORED. THE RATIO OF THIS JUDGEMENT IS APPLICABLE IN THE PRESEN T CASES.' 7. COPY OF AUTHORIZATION GRANTED BY THE PCIT-4, AHME DABAD VIDE LETTER NO.PCIT-4/A'BAD/M.A./TARUN VARMA&GAURAV VARMA/2018-19 DATED 14.03.2019 FOR FILING MISCELLANEOUS APPLICATION IS ENCLOSED HEREWITH ALONG WITH COPY OF HON'BLE ITAT'S ORDER. SD/- (DROP SINGH MEENA) JT.COMMISSIONER OF INCOME TAX (OSD) 3. WITH THE ASSISTANCE OF THE LD.REPRESENETATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. 4. THE POWER OF RECTIFICATION UNDER SECTION 254 (2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH I S SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS A PPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE E STABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON PO INTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. MA NO.163/AHD/2019 - 3 - 5. GRIEVANCE OF THE REVENUE IN ITS MA IS THAT THE T RIBUNAL OUGHT TO HAVE NOT SET ASIDE ORDER OF THE CIT(A) WITHOUT ASSI GNING ANY REASON MORE PARTICULARLY WHEN THE LD.CIT(A) HAS DECIDED TH E APPEAL EX PARTE DUE TO NON-APPEARANCE OF THE ASSESSEE. IT APPEARS THAT PROBABLY LD.JCIT, SHRI DS MEENA, BEFORE FILING THE APPLICATION, HAS N OT READ THE TRIBUNALS ORDER. THIS MA IS MISCONCEIVED AND TOTALLY BASED O N MISCONSTRUCTION OF THE FACTS. THE TRIBUNAL NOT ONLY DISCUSSED THE ISS UE, BUT ALSO REPRODUCED THE FINDING RECORDED BY THE LD.CIT(A). THE TRIBUNA L HAS POINTED OUT THAT THOUGH THE ORDER OF THE LD.CIT(A) IS RUNNING I NTO 21 PAGES, BUT HE SIMPLY REPRODUCED FIRST 18 PAGES FROM THE ASSESSMEN T ORDER. THE TRIBUNAL THEREAFTER TOOK NOTE OF THE ACTUAL FINDING SHOWING APPLICATION OF MIND AT THE END OF THE LD.CIT(A). THEREAFTER, T HE TRIBUNAL HAS OBSERVED THAT THESE FINDINGS ARE NOT IN CONSONANCE WITH THE PROCEDURE REQUIRED UNDER SUB-SECTION (6) OF SECTION 250. THE LD.CIT(A) HAS DISMISSED THE APPEAL FOR THE ASSESSEE FOR WANT OF P ROSECUTION, FOR WHICH SHE HAS NO JURISDICTION. WITHOUT REALIZING AND REA DING OF THIS FINDING, THE JCIT HAS PROPOSED FOR FILING SUCH FRIVOLOUS APPL ICATION UNNECESSARILY PUTTING COST ON THE EXCHEQUER. THEREFORE, WE DO NO T FIND ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL, AND NO MERIT IN THE MA. IT IS DISMISSED. 6. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 29/07/2019