The Income tax Officer, Ward-3(1)(4), Ahmedabad V. M/s. Prithvi Hitex Creations Pvt. Ltd., Ahmedabad

MA 307/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4674 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Keywords: Corroborative evidences
• Section: 143(3); 142(1); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER MA NO.307/AHD/2018 AY 2009-10 ( IN ITA NO.826/AHD/2017 AY 2009-10 ) THE ITO WARD-3(1)94) AHMEDABAD / VS. M/S.PRITHVI HITEX CREATION PVT.LTD. 35 & 36, GIDC APPAREL PARK KHOKHRA AHMEDABAD 380 002 ./ ./ PAN/GIR NO. : AABCK 7617 H ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RAJESH MEENA, SR.DR / RESPONDENT BY : SHRI SANJAY R. SHAH, AR / DATE OF HEARING 15/03/2019 !'# / DATE OF PRONOUNCEMENT 20/03/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATIO N IS SEEKING TO RECALL THE ORDER DATED 28/06/2018 OF THE TRIBUNA L BEARING ITA NO.826/AHD/2017 FOR ASST YEAR 2009-10 ON THE GROUND THAT THERE IS AN APPARENT MISTAKE IN THE ORDER. 2. THE REVENUE SUBMITTED AS UNDER: MISCELLANEOUS APPLICATION U/S.254(2) OF THE INCOME -TAX ACT. 1961 ITO-WARD-3(L)(4)/MA/PRITHVI/2018-19 DATE:- 04.12.2018 TO, MA NO.307/AHD/2018 (IN ITA NO.826/AHD/2017) ITO VS. M/S.PRITHVI HITEX CREATION P.LTD. ASS T.YEAR 2009-10 - 2 - THE DY. REGISTRAR, ITAT, 3 RD & 4 TH FLOOR, ABHINAV ARCADE, NR. V. S. HOSPITAL, NR. MUNICIPALITY SCHOOL, PRITAMNAGAR, ELLIS BRIDGE, AHMEDABAD. SIR, KINDLY REFER TO THE TRIBUNAL ORDER DATED 28.06.2018 IN ITA NO.826/AHD/2017 IN THE CASE OF M/S PRITHVI HITEX CREATIONS PVT. LTD, 35 & 36, GIDC APPAREL PARK, KHOKHRA, AHMEDABAD-380002 FOR THE ASSESSMENT YEAR 2009-10. 2. IN THIS CASE, THE ASSESSEE'S APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES BY THE HONBLE ITAT, 'C' BENCH, AHMEDABAD VIDE ITS ORDER I TA NO.826/AHD/2017 DATED 28.06.2018. 2.1 IN THE CASE, HONBLE ITAT' C' BENCH, AHMEDABAD HAD ALLOWED THE APPEAL OF THE ASSESSEE FOR THE STATISTICAL PURPOSE AND RESTORED T O AO VIDE ORDER NO. 2804/AHD/2012 DATED 22.03.2013. IN COMPLIANCE TO THAT ORDER, THIS OFFICE CALLED FOR THE INFORMATION U/S 142(1) OF THE ACT FROM THE ASSESSEE ON 24.07.20 13. IN THE RESPONSE OF THE NOTICE, THE ASSESSEE ASKED THE SUFFICIENT TIME ON 26.07.201 3. HOWEVER, THE ASSESSEE DID NOT SUBMIT ANY SUPPORTING EVIDENCE AGAINST ITS CLAIM OF BEING NON-JUSTIFIABLE AND BAD IN LAW DISALLOWANCE ON ACCOUNT OF COMMISSION EXPENSES. THIS OFFICE AGAIN GAVE ANOTHER OPPORTUNITY VIDE NOT ICE U/S 142(1) R.W.S. 129 OF THE ACT DATED 01.01.2015 AND RECEIVED ON 24.01.2015. HEREW ITH, SUMMONS UNDER SECTION 131 OF THE ACT TO SMT. BHANUBEN K LODHA, SHRI DINES HBHAI G LODHA, SHRI NARESHBHAI M SHAH (CLAIMED RECEIVER OF THE COMMISSI ON) AND A LETTER TO PRINCIPAL OFFICER OF THE COMPANY CONCERNED FOR THE CROSS EXAM INATION OF THE CLAIM OF RECEIVING OF THE COMMISSION FROM THE FORMER PERSONS WERE ISSU ED ON 25.02.2015 AND ASKED TO ATTEND THE OFFICE BY 05.03.2015. IN THE RESPONSE OF THIS, THE ASSESSEE ASKED AN ADJOURNMENT BY 09.03.2015. ANOTHER OPPORTUNITY TO THE RECEIVER OF THE COMMISSI ON WAS GIVEN TO SMT. BHANUBEN K LODHA, SHRI DINESHBHAI G LODHA, SHRI NARESHBHAI M S HAH AND ASKED TO ATTEND OFFICE ON 11.03.2015. DUE TO CONTINUOUS NON-COMPLIANCE, ASST. ORDER U/S 143(3) R.W.S. 254 OF THE ACT ON UNCHANGED INCOME WAS PASSED ON 26.03.2015. 2.2 FURTHER, ASSESSEE FILED THE APPEAL BEFORE LD.CI T(A). HERE ALSO, THE ASSESSEE KEPT ITS NON-COMPLIANCE BEFORE LD. CIT(A) AS TABULATE BE LOW. MA NO.307/AHD/2018 (IN ITA NO.826/AHD/2017) ITO VS. M/S.PRITHVI HITEX CREATION P.LTD. ASS T.YEAR 2009-10 - 3 - DATE OF NOTICE DATE OF HEARING REMARKS 30.5.2016 27.06.2016 RETURNED UNDELIVERED BY THE INDIA POST. 17.06.2016 18.07.2016 NOTICE BY AFFIXTURE 29.07.2016 13.09.2016 NON ATTENDANCE, NO ADJOURNMENT, NO WRITTEN SUBMISSION FILED 27.09.2016 10.11.2016 FINAL NOTICE- NON ATTENDANCE, ADJOURNMENT, NO WRITTEN SUBMISSION FILED LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND PASSED THE APPELLANT ORDER IN THE FAVOR OF THE DEPARTMENT. 2.3 THE ASSESSEE ONCE AGAIN PRESENT THE APPEAL BEFO RE YOUR HONOR AGAINST THE LD.CIT(A)'S ORDER ON 14.03.2017 ON TAKING THE PLEA (SURMISLY) THAT LD. CIT(A) FAILED TO APPRECIATE THE AR AS HE W AS NOT AVAILABLE FOR THE HEARING. HENCE, EX PARTE ORDER IS NOT JUSTIFIABLE. ASSESSING OFFICER HAS FAILED TO DISCHARGE THE VERACITY OF BROKERAGE PAYMENT IN COMPLIANCE OF HONBLE ITAT'S ORDER (ITA NO. 2804/AH D/2012 DATED 22.03.2013). CONSEQUENTLY, YOUR HONOR HAS ALLOWED THE APPEAL OF THE ASSESSEE FOR THE STATISTICAL PURPOSE AND RESTORED TO LD.CIT(A) VIDE ORDER NO. 82 6/AHD/2012 DATED 28.06.2018 FOR RECONSIDERATION OF APPEAL AFTER ALLOWING THE PROPER OPPORTUNITY. THE DECISION OF THE TRIBUNAL IS NOT ACCEPTABLE AS T HE ASSESSEE HAS BEEN PROVIDED THE PROPER AND ENOUGH OPPORTUNITY TO PROVIDE THE ALL SU PPORTING EVIDENCE AND PROVE THE CLAIM AS JUST AT LEVEL OF THE AO AND LD.CIT(A). BUT THE ASSESSEE HAS KEPT THE NON- COMPLIANCE AT THE BOTH LEVEL. RIGHT OF HEARING IS J UST RIGHT OF ANY PERSON AS LAID DOWN BY JUDGMENT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA IN 1978 SCR (2) 621. HOWEVER, IT IS VERY EVIDENT THAT IF ONE IS NOT PRES ENTING ONESELF TO AUTHORITY, HOW CAN THE ONE BE HEARD? HENCE PROPER COMPLIANCE AND PRESE NCE IS BASIC CONDITION OF RIGHT OF HEARING. HIGH COURT OF GUJARAT HAS ALSO GIVEN TH E JUDGMENT IN THE CASE OF ASHOK CHANDUJI THAKOR VS. PR.CIT-3, ABAD IN THE FAVOUR O F THE DEPT. ON BEING NON- COOPERATION OF THE ASSESSEE AT THE LEVEL OF ASSESSI NG OFFICER AND LD.CIT(A). MA NO.307/AHD/2018 (IN ITA NO.826/AHD/2017) ITO VS. M/S.PRITHVI HITEX CREATION P.LTD. ASS T.YEAR 2009-10 - 4 - IN VIEW OF ABOVE, THIS MISCELLANEOUS APPLICATION IS BEING FILED TO DRAW ATTENTION OF THE HONBLE ITAT IN THE ABOVE MATTER. THIS MISCELLANEOUS APPLICATION IS BEING FILED WITH THE PRIOR APPROVAL OF THE C1T (JUDICIAL), AHMEDABAD VIDE HIS LETTER NO. PR.CCLT/ CLT(JUD)/ABD/260A/2018- 19/602/2 DATED 20.11.2018. ENCL : AS ABOVE. YOURS FAI THFULLY, SD/- (DHIREN BAROT) INCOME TAX OFFICER WARD-3(1)(4),AHMEDABAD 3. ON THE OTHER HAND, THE LD.AR SUBMITTED THAT THE LD. DR AT THE TIME OF HEARING DID NOT OBJECT ON THE RESTORATION O F THE APPEAL TO THE LD. CIT-A. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF THE ITAT. 4. HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. AT THE OUTSET, WE NOTE THAT ORDER PASSED BY THE LD. CIT-A WAS EX- PARTE, AND THEREFORE THE SAME WAS RESTORED TO THE F ILE OF LD. CIT(A) FOR FRESH ADJUDICATION. AT THE TIME OF THE ORIGINAL HEA RING THE LD. DR DID NOT RAISE ANY OBJECTION ON THE RESTORATION OF THE FILE TO THE LD. CIT-A FOR FRESH ADJUDICATION AS PER LAW. THUS THE ORDER PASSED BY T HE TRIBUNAL WAS THE CONSENT ORDER. THE FACT OF THE CONSENT PROVIDED BY THE LD. DR AT THE TIME OF HEARING THE ORIGINAL APPEAL WAS NOT DISPUTED. TH EREFORE, IT IS INFERRED THAT THERE WAS NO OBJECTION TO THE LD. DR FOR RESTO RING THE ISSUE TO THE MA NO.307/AHD/2018 (IN ITA NO.826/AHD/2017) ITO VS. M/S.PRITHVI HITEX CREATION P.LTD. ASS T.YEAR 2009-10 - 5 - FILE OF LD. CIT(A) FOR FRESH ADJUDICATION. THEREFO RE, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE ITAT AS DISCUSSED ABOVE. HENCE, WE DISMISS THE MISCELLA NEOUS APPLICATION FILED BY THE REVENUE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 2 0/03/2019 SD/- SD/- (MS.MADHUMITA ROY) (WASEEM AH MED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/03/2019 &. ., .(. . / T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) *+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-9, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !' #, / ITAT, AHMEDABAD