The ITO, Ward-2(2), Baroda V. Hansaben R. Chandrana L/h of Late Rajendra K.Chandrana, Baroda

MA 250/AHD/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6764 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 27-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SEDKUR SHARMA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI T.K. SHARMA, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.250/AHD/2009 IN I.T.A. NO.1958 / AHD/2007 (ASSESSMENT YEAR 2003-04) ITO, WARD 2(2), BARODA VS. SHRI RAJENDRA K CHANDARANA, PROP. OF BARODA PACKAGING, SHETHI TOOLS COMPOUND JAMBUVA BRIDGE, NH NO.8, MAKARPURA, BARODA. PAN/GIR NO. : ACUPC2932P (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SAMIR TEKRIWAL, SR. DR RESPONDENT BY: SHRI SEDKUR SHARMA, AR DATE OF HEARING: 23.09.2011 DATE OF PRONOUNCEMENT: 30.09.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS M.A. IS FILED BY THE REVENUE AND IT HAS BEEN SUBMITTED IN THE M.A. THAT IN THE PRESENT CASE, THE ASSESSMENT ORDER U/S 143(3) WAS PASSED BY THE A.O. ON 28.03.2006 I.E. ABOUT MORE THAN SIX MONTHS EARLIER WHEN THE ASSESSEE WAS HOSPITALIZED ON 26.09.2006 AND EXP IRED ON 23.10.2006 BUT IT IS STATED BY THE TRIBUNAL IN ITS ORDER THAT THE ASSESSMENT ORDER WAS PASSED ON 23.10.2006 I.E. DATE OF DEATH OF THE ASSE SSEE, WHICH IS NOT CORRECT. HENCE, THERE IS A MISTAKE APPARENT FROM R ECORD AND THEREFORE, THE M.A.NO.250 /AHD/2009 2 SAME SHOULD BE RECTIFIED AND THE ISSUE SHOULD NOT B E RESTORED BACK TO THE FILE OF LD. CIT(A). 2. THE SAME CONTENTIONS WERE REITERATED BY THE LD. D.R. AND OUR ATTENTION WAS DRAWN TO THE COPY OF THE ASSESSMENT O RDER, WHICH IS AVAILABLE ON RECORD AND IT WAS POINTED OUT THAT THE ASSESSMENT ORDER WAS PASSED BY THE A.O. ON 28.03.2006 AND NOT ON 23.10.2 006 AS OBSERVED BY THE TRIBUNAL ON PAGE 2 OF ITS ORDER DATED 18.03.200 8 AND HENCE, ON A WRONG BASIS, THE ISSUE WAS DECIDED BY THE TRIBUNAL AND THE MATTER WAS RESTORED BACK TO THE FILE OF LD. CIT(A). IT WAS HI S SUBMISSION THAT IT IS APPARENT MISTAKE IN THE TRIBUNAL ORDER, WHICH SHOUL D BE RECTIFIED AND THE ISSUE SHOULD NOT BE RESTORED BACK TO THE FILE OF LD . CIT(A). 3. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. A.R . OF THE ASSESSEE THAT ADMITTEDLY, THE ASSESSMENT ORDER WAS PASSED BY THE A.O. ON 28.03.2006 AND TO THIS EXTENT, WRONG DATE HAS BEEN MENTIONED BY THE TRIBUNAL ON PAGE 2 OF THE IMPUGNED ORDER BUT IF WE READ THE ORDER IN WHOLE, IT IS CLEAR THAT THE BASIS IS NOT THIS THAT THE ASSESSMENT ORDER WAS PASSED ON 23.10.2006 AND RATHER, THE BASIS IS THIS THAT DURING THE ASSESSMENT PROCEEDINGS ALSO, THE ASSESSEE WAS NOT I N GOOD HEALTH AND, THEREFORE, ALTHOUGH THE DATE OF PASSING OF ASSESSME NT ORDER MAY BE RECTIFIED BUT IT WILL NOT HAVE ANY IMPACT ON THE CO NCLUSION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE DATE OF ASSESSMENT ORDER IN FACT IS 28.03.2006 AND NOT 23.1 0.2006 AND HENCE, TO THIS EXTENT, WE RECTIFY THE IMPUGNED TRIBUNAL ORDER DATED 18.03.2008 AND HOLD THAT THE DATE MENTIONED IN THE TRIBUNAL ORDER BEING THE DATE OF PASSING THE ASSESSMENT ORDER SHOULD BE READ AS 28.0 3.2006 AND NOT 23.10.2006. REGARDING THIS CONTENTION OF LD. D.R. THAT THE ULTIMATE CONCLUSION OF THIS TRIBUNAL ORDER SHOULD ALSO CHANG E BECAUSE OF THIS RECTIFICATION, WE FEEL THAT THIS IS NOT ACCEPTABLE BECAUSE WHEN WE READ THE M.A.NO.250 /AHD/2009 3 IMPUGNED ORDER IN ITS TOTALITY, WE FIND THAT THIS I S NOT THE BASIS OF RESTORING BACK THE MATTER TO THE FILE OF THE LD. CI T(A) THAT THE ASSESSMENT ORDER WAS PASSED ON 23.10.2006 AND FOR THIS REASON, THE ASSESSEE COULD NOT COMPLY WITH THE REQUIREMENT OF THE A.O. IN FAC T, THE BASIS ADOPTED BY THE TRIBUNAL IS THIS THAT THE EVIDENCE IN SUPPORT OF HOSPITALIZATION I.E. MEDICAL CERTIFICATE AND THE DEATH OF THE ASSESSEE S UBSEQUENT THEREAFTER AMPLY SUGGEST THAT THE ASSESSEE WAS NOT IN GOOD HEA LTH DURING THE ASSESSMENT PROCEEDINGS AND ON A COMPASSIONATE GROUN D, IN THE CONSIDERED OPINION OF THE TRIBUNAL, THE LD. CIT(A) SHOULD HAVE ACCEPTED AND ACTED UPON THE ABOVE SAID EVIDENCE AND ALSO OTH ER EVIDENCES PRODUCED BEFORE HIM. THIS GOES TO SHOW THAT THE U LTIMATE CONCLUSION IS ON THIS BASIS THAT DURING THE ASSESSMENT PROCEEDING S, THE ASSESSEE WAS NOT IN GOOD HEALTH. WHEN A PERSON IS REQUIRED TO BE AD MITTED IN HOSPITAL IN THE MONTH OF SEP. AND HE EXPIRES IN OCTOBER WITHIN ONE MONTH OF HOSPITALIZATION, IT IS NOT UNNATURAL AND NOT UNACCE PTABLE THAT IN THE MONTH OF MARCH, THIS PERSON WAS NOT IN GOOD HEALTH WHEN T HE ASSESSMENT PROCEEDINGS WERE GOING ON. IN THIS VIEW OF THE MAT TER, WE HOLD THAT ALTHOUGH THE DATE OF ASSESSMENT ORDER IS TO BE RECT IFIED AND HAD BEEN RECTIFIED BY US, IT WILL HAVE NO IMPACT ON THE ULTI MATE CONCLUSION OF THE TRIBUNAL ORDER IN THE PRESENT CASE. 5. IN THE RESULT, M.A. OF THE REVENUE STANDS ALLOWE D PROTANTO. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEP., 2011. SD./- SD./- (T. K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 30.09.2011 SP M.A.NO.250 /AHD/2009 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 27.09 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER28.09OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 29.09 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30.09 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30.09 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.09.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..