MOHIT RAKESHKUMAR GUPTA, MUMBAI V. ITO WD 14(3)-2, MUMBAI

ITA 1050/MUM/2012

• Counselvise Citation: 105019914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 13-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Keywords: Principle of natural justice
• Section: 145; 144

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , ,, , , ! ! ! ! '# $% '# $% '# $% '# $% , ,, , & & & & ' ' ' ' BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 970/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200203 ) . / ITA NO. 1049/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200304 ) . / ITA NO. 1050/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200405 ) . / ITA NO. 1051/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200506 ) . / ITA NO. 1052/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200607 ) . / ITA NO. 971/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200708 ) . / ITA NO. 1053/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200809 ) MR. MOHIT RAKESHKUMAR GUPTA PROP. M/S. ASTHA SILK INDUSTRIES SHOP NO.4, RAM GALLY PANKAJ MARKET, CHAMPA GALLY CROSS LANE, MUMBAI 400 002 .. ,- / APPELLANT ) V/S INCOME TAX OFFICER WARD14(3)(2) EARNEST HOUSE, MUMBAI .... ./,- / RESPONDENT , ./ PERMANENT ACCOUNT NUMBER AFUPG9014P MR. MOHIT RAKESHKUMAR GUPTA MR. NILESH R. GUPTA 2 . / ITA NO. 1048/MUM./2012 ( &) * !+* / ASSESSMENT YEAR : 200809 ) MR. NILESH R. GUPTA PROP. M/S. DEV VANI INDUSTRIES SHOP NO.4, RAM GALLY PANKAJ MARKET, CHAMPA GALLY CROSS LANE, MUMBAI 400 002 .. ,- / APPELLANT ) V/S INCOME TAX OFFICER WARD14(3)(2) EARNEST HOUSE, MUMBAI .... ./,- / RESPONDENT , ./ PERMANENT ACCOUNT NUMBER AFUPG9014P &) *1# 2 3 / ASSESSEE BY : MR. PRAKASH PANDIT A/W MR. VIJAY PANDIT ! 2 3 / REVENUE BY : MR. O.P. SINGH )! 2 # / DATE OF HEARING 01.08.2013 $ 4+ 2 # / DATE OF ORDER 14.08.2013 $ $ $ $ / ORDER ./ ./ ./ ./ PER BENCH IN THE PRESENT CASE, THERE ARE TWO DIFFERENT ASSESS EES AND WE FIRST PROCEED TO DISPOSE OFF THE APPEALS WHICH RELATE TO MR. MOHIT R AKESHKUMAR GUPTA. THE ASSESSEE PREFERRED SEVEN APPEALS CHALLENGING THE IMPUGNED OR DERS OF EVEN DATE 18 TH NOVEMBER 2011, FOR THE ASSESSMENT YEARS 200203 AND 200708 AND ORDERS OF EVEN DATE 2 ND DECEMBER 2012, FOR THE ASSESSMENT YEARS 200304 TO 200607 AND 200809 RESPECTIVELY FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 147/144 R/W SECTION 148/145, WHICH WERE PASSED BY THE LEARN ED COMMISSIONER (APPEALS) XXV, MUMBAI. ALL THESE APPEALS WERE HEARD TOGETHER AND, AS A MATTER OF CONVENIENCE, THESE ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. MR. MOHIT RAKESHKUMAR GUPTA MR. NILESH R. GUPTA 3 2. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE VERY O UTSET, SUBMITTED BEFORE US THAT IN ALL THESE APPEALS, THERE HAS BEEN VIOLATION OF NATURAL JUSTICE AS THE LEARNED COMMISSIONER (APPEALS) HAS PASSED EXPARTE ORDER WI THOUT CONSIDERING THE DETAILED PAPER BOOK AND WRITTEN SUBMISSIONS WHICH WERE FILED BEFORE HIM. HE ALSO SUBMITTED THAT IN SIMILAR CIRCUMSTANCES AND ON IDENTICAL ISSU ES AND GROUNDS WERE INVOLVED IN THE CASE OF MRS. HEMA RAKESHKUMAR GUPTAS CASE WHER EIN THE TRIBUNAL, FOR VARIOUS ASSESSMENT YEARS HAS RESTORED BACK THE ISSUE TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS). HE, THEREFORE, PRAYED THAT SINCE IDENTICAL ISSUES AND GROUNDS ARE INVOLVED IN THOSE APPEALS ALSO WHICH AR E ARISING OUT OF THE SAME SET OF FACTS AND CIRCUMSTANCES, ALL THESE APPEALS MAY ALSO BE RESTORED TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) TO DEAL AND DECIDE T HE ISSUES AFRESH ON MERITS. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESE NTATIVE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS), VIDE PARA2 OF HIS ORDER, HAS SPECIFICALLY MENTIONED THAT VARIOUS NOTICES OF HEARING WAS GIVEN TO THE ASSESSEE AND THE CASE WAS ALSO ADJOURNED FROM TIME TO TIME. SINCE NOBODY APPEARED ON THE LAST DATE OF HEARING, THE LEARNED COMMISSIONER (APPEALS) DECIDED THE APPEALS EXPARTE AND, HENCE, THE MATTER SHOULD NOT BE RESTORED BACK TO TH E FILE OF THE LEARNED COMMISSIONER (APPEALS). 4. IN THE REJOINDER, THE LEARNED COUNSEL SUBMITTED THA T THE ASSESSEE HAS FILED A COPY OF WRITTEN STATEMENT ALONG WITH THE PAPER BOOK RUNNING INTO 140 PAGES ON 9 TH MARCH 2011 AND A SPECIFIC REQUEST WAS MADE BEFORE T HE LEARNED COMMISSIONER (APPEALS) TO GIVE HEARING AFTER 14 TH NOVEMBER 2011. THE LEARNED COMMISSIONER (APPEALS) HAD ADJOURNED THE MATTER FOR A DAY AND PR OCEEDED TO DISMISS THE APPEALS EXPARTE. HE, THEREFORE, SUBMITTED THAT, WITHOUT PR EJUDICE, AN OPPORTUNITY OF HEARING SHOULD BE GIVEN AT THE STAGE OF THE LEARNED COMMISSIONER (APPEALS) SO THAT THE ENTIRE MATTER CAN BE HEARD ON MERITS AT THE FIR ST APPELLATE STAGE OR OTHERWISE HE IS READY TO ARGUE THE ENTIRE MATTER AFRESH BEFORE T HE TRIBUNAL. 5. AFTER HEARING THE RIVAL CONTENTIONS AND ON A PERUSA L OF THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS), WE FIND THAT TH E LEARNED COMMISSIONER (APPEALS) HAD DECIDED THESE CASES EXPARTE. HOWEVER , THE LEARNED COMMISSIONER (APPEALS), VIDE PARA2 OF HIS ORDER, HAS ALSO STATE D THAT HE HAS GIVEN COUPLE OF OPPORTUNITIES TO THE ASSESSEE WHICH WERE NOT AVAILE D. BEFORE US, THE LEARNED COUNSEL HAD SUBMITTED THAT THE ASSESSEE HAD FILED D ETAIL WRITTEN SUBMISSION AND MR. MOHIT RAKESHKUMAR GUPTA MR. NILESH R. GUPTA 4 PAPER BOOK BEFORE THE LEARNED COMMISSIONER (APPEALS ) WHICH HAS NOT BEEN CONSIDERED BY HIM. IN VIEW OF THESE FACTS AND IN TH E INTEREST OF SUBSTANTIAL JUSTICE AND ALSO THE FACT THAT UNDER SIMILAR FACTS AND CIRC UMSTANCES, A COORDINATE BENCH OF THE TRIBUNAL IN MRS. HEMA RAKESHKUMAR GUPTA, FOR TH E ASSESSMENT YEARS 200203 TO 200809 VIDE TWO SEPARATE ORDERS, HAS RESTORED T HE ENTIRE ISSUE TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS). CONSEQUENTLY, FOLLO WING THESE DECISIONS OF THE COORDINATE BENCH, WE ALSO SET ASIDE THE IMPUGNED OR DERS PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE BACK THE ENTIRE MATTER FOR ALL THE ASSESSMENT YEARS UNDER APPEAL TO THE FILE OF THE LEARNED COMMI SSIONER (APPEALS) FOR DECIDING THE ISSUES AFRESH ON MERITS AND IN ACCORDANCE WITH LAW, WITHOUT GETTING PREJUDICE BY THE EARLIER FINDINGS. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE LEARNED COMMISSIONER (APPEALS) DURING THE PROCEEDINGS BEFOR E HIM. THUS, THE GROUNDS RAISED IN ALL THE YEARS UNDER ASSESSMENT ARE TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. 6. 1 #5 &) *1# 2 6 72 89: ' !# ; ) # <=> 6. IN THE RESULT, ASSESSEES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. WE NOW PROCEED TO DISPOSE OFF THE APPEAL WHICH REL ATE TO MR. NILESH R. GUPTA, FOR THE ASSESSMENT YEAR 200809, VIDE WHICH, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER DATED 7 TH DECEMBER 2012, PASSED BY THE LEARNED COMMISSIONER (APPEALS)XXV, MUMBAI, FOR THE QUANTUM OF ASSESSMEN T PASSED UNDER SECTION 144 R/W SECTION 145 OF THE ACT. HERE ALSO, SAME FACTS A ND CIRCUMSTANCES EXIST. THEREFORE, IN THIS CASE ALSO, WE RESTORE BACK THE E NTIRE APPEAL TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR DECIDING AFRESH AND IN ACCORDANCE WITH LAW AS STATED IN THE FORGOING PARAGRAPHS. 7. IN THE CASE OF MR. MOHIT RAKESHKUMAR GUPTA, FOR ASS ESSMENT YEAR 200203, WE FIND THAT THE LEARNED COMMISSIONER (APPEALS) HAS DEALT THE ISSUES RAISED IN THE GROUND OF APPEAL ON MERITS. HOWEVER, IT HAS BEEN SU BMITTED BY BOTH THE PARTIES THAT THE ISSUE INVOLVED IN ALL THE APPEALS ARE SIMI LAR, THEREFORE, WE ARE OF THE OPINION THAT THIS MATTER SHOULD ALSO 9BE RESTORED T O THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR DECIDING THE ISSUE AFRES H AND IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. MR. MOHIT RAKESHKUMAR GUPTA MR. NILESH R. GUPTA 5 8. 1 #5 &) *1# 2 6 72 89: ' !# ; ) # <=> 8. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. 9. &) *? $!@, &) *1# 2 6 72 89: ' !# ; ) # <= > 9. TO SUM UP, ASSESSEES APPEALS ARE TREATED AS ALL OWED FOR STATISTICAL PURPOSES. $ 2 + 6 A)5 14 TH AUGUST 2013 2 B > ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH AUGUST 2013 SD/- SANJAY ARORA ACCOUNTANT MEMBER SD/- '# '# '# '# $% $% $% $% & & & & AMIT SHUKLA JUDICIAL MEMBER MUMBAI, A) A) A) A) DATED: 14 TH AUGUST 2013 $ 2 .&#'C DC+# / COPY OF THE ORDER FORWARDED TO : (1) &) *1# / THE ASSESSEE; (2) ! / THE REVENUE; (3) E () / THE CIT(A); (4) E / THE CIT, MUMBAI CITY CONCERNED; (5) C!HB .&#&) , , / THE DR, ITAT, MUMBAI; (6) BI* J / GUARD FILE. /C# .&# / TRUE COPY $) / BY ORDER . . KL / PRADEEP J. CHOWDHURY !1M &) K! / SR. PRIVATE SECRETARY 8 / < / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI