Poojan Kinnerkumar Patel, Ahmedabad vs Assessee

अपीलाथ!/ (Appellant) "#यथ!/ (Respondent)

Assessee(s) by : Shri M.K. Patel Revenue by : Shri Dinesh Singh, Sr.DR

सन ु वाई क तार ख/ Date of Hearing : 15/06/2015 घोषणा क तार ख / Date of Pronouncement: 19/06/2015 आदे श/O RDER

PER N.S. SAINI, ACCOUNTANT MEMBER: This is an appeal

filed by the assessee against the order of the CIT(A)-XVI, Ahmedabad dated 22.9.2011.

2. The assessee has taken the following grounds of appeal:

"1) That on facts and in law the learned CIT (A) has grievously erred in deciding the appeal ex-parte, without providing sufficient opportunity to appellant.

2) That on facts and in law, the learned CIT (A) ought to have decided the appeal on merits instead of dismissing the appeal for non-attendance.

ITA No.2989/Ahd/2011 2 3) That on facts in law, the learned CIT (A) has grievously erred in law and on facts in making disallowance of claim of bad debt/trading loss of Rs.4,66,444/-.

4) That, in the alternate and without prejudice to Ground No. (1) above appropriate relief ought to have been given in the appropriate assessment year as stated on page 5 of the order under appeal.

5) That the learned CIT (A) has grievously erred in law and on facts in disallowing the payment of Rs.3,60,122/- by incorrectly holding that it is not allowable under section 36(1) (ii) of the Act.

(6) That the learned CIT (A) has grievously erred in law and on facts in disallowing the proportionate expenditure of Rs.

4,80,000/- by incorrectly invoking the provisions of section 194-I read with section 40 (a) (ia) of the Act.

(7) That the learned CIT (A) has grievously erred in charging interest under section 234B and 234C of the Income-tax Act, 1961.

(8) The appellant craves leave to add, alter, amend any ground of appeal."

3. The AR of the assessee submitted that the CIT(A) dismissed the appeal of the assessee by observing that the appeal was fixed for hearing on 1.8.2011. The same was adjourned to 12.8.2011 at the request of the assessee. Again on 12.8.2011, the case was adjourned to 29.8.2011 at the request of the Assessee. Again on 29.8.2011, at the request of the assessee the case was adjourned to 22.9.2011. On 22.9.2011. the assessee failed to appear before the CIT(A) and no adjournment application was filed. Therefore, CIT(A) observed that the AO had made the addition after considering the submission of the assessee made before him, and since the assessee had not turned up, therefore, he had no reason ITA No.2989/Ahd/2011 3

to interfere with the findings of the AO. The AR of the assessee submitted that it is a fact that the assessee failed to appear before the CIT(A) on 22.9.2011, as there was illness in the family. He submitted that even if the assessee failed to appear on the date of hearing, it was incumbent upon the CIT(A) to dispose of the appeal on merits. It was therefore, prayed that the matter should be restored to the file of the CIT(A) for disposing of the appeal on merits. He also placed reliance o the decision of the Ahmedabad Bench of the Tribunal in the case of Gujarat Themis Biosyn Ltd. Vs. JCIT, 74 ITD 339 (Ahd) wherein it was held as under:

"The provisions of section 250(6) provides that the appellate orders of the Commissioner (Appeals) are to state the points arising in the appeal, the decision of the authority thereon and the reasons for such decision. The underlying rationale of the provision is that such orders are subject to further appeal to the Tribunal. Speaking order would obviously enable a party to know precise points decided in his favour or against him. Absence of the formulation of the point for decision for want of clarity in a decision undoubtedly puts a party in quandary. Section 250(6) expressly embodies principles of natural justice and such a provision is clearly mandatory in nature. The impugned order passed by the Commissioner (Appeals) in don of the provisions of section 250(6) could not, therefore, be sustained.

The Commissioner (Appeals) should, accordingly dispose of the assesses's appeal afresh."

4. On the other hand, the DR opposed the setting aside of the matter to the file of the CIT(A) for disposal of appeal on merits on the ground that sufficient opportunity was allowed to the assessee and the assessee failed to appear before the CIT(A) and file relevant documents and details in support of its case.

ITA No.2989/Ahd/2011 4 5. After considering the rival submissions and perusing the material available on record, we find that the appeal of the assessee was dismissed by the CIT(A) on the ground that the assessee failed to appear before him on 22.9.2011 and no adjournment application was filed. In our considered view, even if the assessee failed to put-in appearance, it is the duty of the CIT(A) to dispose of the appeal on merit on the basis of material available on record. Our view finds support from the decision of the Hon'ble Delhi High Court in the case of VODAFONE ESSAR LTD Vs. DISPUTE RESOLUTION PANEL-II & Ors. in W.P.(C) 7028/2010 order dated 02.12.2010 wherein it has held as under:

"Heard Mr. Syali, learned senior counsel for the petitioner and Mr. Sanjeev Sabhrawal, learned standing counsel for the revenue.

By this writ petition, the petitioner has prayed for issue of a writ of certiorari for quashment of the order dated 30th September 2010 passed by the Dispute Resolution Panel -II, the first respondent herein. What could have been a matter of debate was put to rest by Mr. Sanjeev Sabhrawal, learned counsel for the revenue by stating that the order passed on 30th September 2010, contained in Annexure - P1 deserves to be quashed and the matter be remanded to the said authority for fresh adjudication.

In view of the aforesaid fair concession, the order dated 30th September 2010 passed by respondent no. 1 is quashed and the matter is remanded to the said respondent to adjudicate afresh. Be it noted, when a quasi judicial authority deals with a lis, it is obligatory on its part to ascribe cogent and germane reasons as the same is the heart and soul of the matter. And further, the same also facilitates appreciation when the order is called in question before the superior forum. Needless to say that the competent authority, while passing the order, shall keep in mind the order dated 29th November 2010 wherein we had directed that the period from the date of filing the writ petition and four weeks after its disposal shall stand excluded, while computing the limitation for the department to pass an assessment order.

The writ petition is allowed to the extent indicated above without any order as to costs."

Hence, we aside the order of the CIT(A), and restore the matter back to the file of the assessee to decide the appeal on merits.

ITA No.2989/Ahd/2011 5 The assessee is directed to appear before the CIT(A) on the date of hearing fixed and file all the details and evidences, on which it wishes rely upon and fully cooperate with the CIT(A) in disposing of the appeal expeditiously. With directions, the appeal of the assessee is allowed for statistical purpose.

6. In the result, the appeal of the assessee is allowed for statistical purpose.

Order pronounced in the Court on Friday the 19th June, 2015 at Ahmedabad.

Sd/- Sd/- (S.S. GODARA) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Ahmedabad; Dated 19/06/2015

आदे श क& " त(ल)प अ*े)षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. संबं धत आयकर आयु!त / Concerned CIT

4. आयकर आयु!त(अपील) / The CIT(A)-III

5. $वभागीय 'त'न ध, आयकर अपील य अ धकरण / DR, ITAT,

6. गाड* फाईल / Guard file.

आदे शानस/ ु ार BY ORDER,

उप/सहायक पंजीकार ( Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad