The ITO, Ward-3(1)(1), Ahmedabad V. Niraj Polymers Pvt. Ltd., Ahmedabad

MA 308/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4474 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 05-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SONIA KUMAR
• Assessee Lawyers: A L THAKKAR
• Keywords: Principle of natural justice; Set aside

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 308/AHD/2018-AY 2014- 15 ( IN I.T.A. NO. 363/AHD/2018-AY 2014-15 ) NIRAJ POLYMERS PVT. LTD., 1/21, ADITI APARTMENT, BEHIND ORIENT CLUB, ELLISBRIDGE, AHMEDABAD - 380006 / VS. THE INCOME TAX OFFICER, WARD-3(1)(1), AHMEDABAD / / PAN/GIR NO. : AABCN0647A ( / APPELLANT NOW RESPONDENT ) .. ( / RESPONDENT NOW APPLICANT) / APPLICANT BY : T. SONIA KUMAR, SR.D.R. / RESPONDENT BY : SHRI A. L. THAKKAR, A.R. / DATE OF HEARING 17/05/2019 !'# / DATE OF PRONOUNCEMENT 29/05/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: BY THE CAPTIONED MISCELLANEOUS APPLICATION, THE REV ENUE SEEKS TO RECALL THE ORDER OF THE ITAT IN ITA NO. 36 3/AHD/2018 ORDER DATED 20.06.2018 WHEREBY THE ORDER OF THE CIT (A) WAS SET ASIDE AND RESTORED TO THE FILE OF THE CIT(A) IN LAR GER INTEREST OF NATURAL JUSTICE WITH A VIEW TO ENABLE THE ASSESSEE TO RE-AGITATE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. M.A. NO. 308/AHD/18 [NIRAJ POLYMERS PVT. LTD. VS. ITO] A.Y. 2014-15 - 2 - 2. WHEN THE MISCELLANEOUS APPLICATION FILED BY THE AO UNDER S.254(2) OF THE ACT WAS PLACED FOR HEARING, THE LEA RNED DR FOR THE REVENUE CONTENDED THAT THE ITAT WAS NOT JUSTIFIED I N GRANTING A FRESH OPPORTUNITY TO THE ASSESSEE IN SETTING ASIDE THE EX PARTE ORDER OF THE CIT(A) DESPITE THE ASSESSEE FAILED TO COMPLY WITH THE STRING NOTICES ISSUED FOR HEARING ON THE SUBJECT MATTER OF APPEAL. FOR THIS PURPOSE, THE LEARNED DR FOR THE REVENUE RELIED UPON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF AS HOK CHANDUJI THAKOR VS. PR.CIT-3, AHMEDABAD. 3. LEARNED AR, ON THE OTHER HAND, POINTED OUT ON FA CTS THAT THE ASSESSEE HAS DULY ATTENDED BEFORE THE AO AND THE OR DER WAS PASSED AFTER DISCUSSION OF THE CASE WITH THE ASSESSEE AS O BSERVED BY THE AO IN PARA NO.1 OF THE ASSESSMENT ORDER HIMSELF. THE LEARNED AR FOR THE ASSESSEE THEREAFTER SUBMITTED THAT THE HEARING WAS FIXED BEFORE THE CIT(A) ON THREE OCCASIONS AS NOTED IN PARA 3 OF ITS ORDER. ON THE FIRST OCCASION, ADJOURNMENT APPLICATION WAS MOV ED AND CASE WAS ACCORDINGLY ADJOURNED. ON THE SECOND OCCASION, ADJO URNMENT APPLICATION WAS AGAIN MOVED AND CASE WAS AGAIN ADJO URNED. ON THE THIRD OCCASION, AN ADJOURNMENT APPLICATION WAS AGAI N MOVED AND NO OTHER DATE WAS GIVEN BY THE CIT(A) AND THE ORDER WA S PASSED EX PARTE REPRODUCING THE CONTENTS OF THE ASSESSMENT ORDER W ITHOUT MAKING ANY EXTERTION IN THIS REGARD. THE LEARNED A R THUS SUBMITTED THAT THE ASSESSEE WAS VIGILANT AND HAS SUBMITTED IT SELF TO THE JURISDICTION OF THE CIT(A) WITHOUT ANY NEGLIGENCE. THE LEARNED CIT(A) ON THE OTHER HAND HAS NOT PASSED THE ORDER O N MERITS IN CONSONANCE WITH SECTION 250(6) OF THE INCOME TAX AC T. THE LEARNED AR THUS SUBMITTED THAT THE JUDGMENT RENDERED IN ASH OK CHANDUJI THAKOR (SUPRA) BY HONBLE GUJARAT HIGH COURT HAS NO APPLICABILITY IN THE FACTS. M.A. NO. 308/AHD/18 [NIRAJ POLYMERS PVT. LTD. VS. ITO] A.Y. 2014-15 - 3 - 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSE SSEE HAS DEMONSTRATED TO BE A LAW ABIDING CONCERN AND HAS DU LY ATTENDED BEFORE THE AO AS ACKNOWLEDGED IN THE ASSESSMENT ORD ER ITSELF. BEFORE THE CIT(A) AS WELL, THE ASSESSEE HAS DULY MO VED ADJOURNMENT APPLICATION ON ALL THREE OCCASIONS AND THEREFORE CANNOT BE SEEN AS AN OFFENDER. IT APPEARS THAT THE CIT(A) RAN OUT OF PATIENCE WHILE PASSING EX PARTE ORDER. WHILE DOING SO, THE CIT(A) HAS MERELY REITERATED THE OBSERVATIONS OF THE AO IN A MECHANICAL MANNER WITHOUT EVEN CALLING FOR THE ASSESSMENT RECO RDS. THE ORDER OF THE CIT(A) FAILS TO PASS THE TEST OF SPEAKING OR DER EMBODIED UNDER S.250(6) OF THE ACT. NOTICEABLY THE ITAT WHI LE SETTING ASIDE SUCH EX PARTE ORDER HAS OBSERVED THAT THE CIT(A) HAS NOT RENDERED ANY DECISION ON MERITS INDEPENDENTLY . IN SUCH A SITUATION, IT WAS CONSIDERED JUST AND EXPEDIENT TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) IN THE LARGER INTEREST OF JUSTICE AND TO PROVIDE THE PROPER OPPORTUNITY TO THE ASSESSEE TO MAINTAIN THE PURITY OF PROCESS AND INTEGRITY OF APPELLATE STRUCTURE. NO PREJUDICE PER SE HAS CAUSED TO THE REVENUE BY SUCH CORRECTIVE MEASURES DIRECTED BY THE ITAT. THERE IS NOTHING IN THE JUDGMENT RENDERED BY THE HO NBLE GUJARAT HIGH COURT IN ASHOK CHANDUJI THAKOR (SUPRA) (TAX AP PEAL NO. 710 OF 2018 JUDGMENT DATED 27.06.2018) TO SUGGEST THAT THE EX PARTE ORDER OF THE CIT(A) CANNOT BE SET ASIDE BY THE ITAT IN EXERCISE OF ITS POWERS CONFERRED UNDER S. 254(1) OF THE ACT. I N OUR OPINION, IT IS INCORRECT TO CONTEND THAT THE TRIBUNAL HAD SET ASID E THE ASSESSMENT TO THE FILE OF THE CIT(A) WITHOUT ASSIGNING REASONS . ON THE CONTRARY, THE ITAT HAS CLEARLY OBSERVED LACK OF IND EPENDENT REASONS ON MERITS IN THE ORDER OF THE CIT(A). THEREFORE, W E DO NOT SEE ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL FAR LESS APP ARENT MISTAKE CONTEMPLATED UNDER S.254(2) OF THE ACT. HENCE, WE DECLINE TO M.A. NO. 308/AHD/18 [NIRAJ POLYMERS PVT. LTD. VS. ITO] A.Y. 2014-15 - 4 - ENTERTAIN THE APPLICATION OF THE REVENUE UNDER S.25 4(2) OF THE ACT. THE MISCELLANEOUS APPLICATION OF THE REVENUE IS THU S DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/05/2019 TRUE COPY S. K. SINHA ! / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ , / CONCERNED CIT 4 ,- / CIT (A) / 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7 289 : / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 29/ 05/2019