BALUMAL DHINGREJA, MUMBAI V. ACIT 19(1), MUMBAI

ITA 1218/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1716 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA NO.1218 & 1219/MUM/2012 ASSESSMENT YEAR : 2005-06 BALUMAL W. DHINGREJA FLAT NO.5, DAN KUTIR 12 TH ROAD, KHAR(W) MUMBAI-400 052. PAN NO.AESPD 7563 B VS. ASSTT. COMMISSIONER OF INCOME TAX -19(1) MUMBAI. (APPELLANT) RESPONDENT) APPELLANT BY : SHRI MANDAR VAIDYA RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARING : 26.02.2013 DATE OF PRONOUNCEMENT : 26.02.2013 O R D E R PER RAJENDRA SINGH, AM: THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS DATED 7.12.2011 AND 14.12.2011 OF CIT(A) FOR THE AS SESSMENT YEAR 2005-06 RELATING TO QUANTUM APPEAL AND PENALTY APPEAL RESPE CTIVELY. IN BOTH THE APPEALS DISPUTES HAVE BEEN RAISED REGARDING LACK OF ADEQUATE OPPORTUNITY TO THE ASSESSEE IN ADDITION TO MERIT OF THE CASE. 2. WE FIRST TAKE THE UP DISPUTE RELATING TO LACK OF ADEQUATE OPPORTUNITY. A PERUSAL OF THE ORDER OF CIT(A) BOTH IN QUANTUM AND PENALTY APPEAL SHOWS THAT THE CIT(A) ALLOWED SEVERAL OPPORTUNITIES TO THE ASS ESSEE BEFORE DISPOSING OFF THE APPEAL TO WHICH THERE HAD BEEN NO COMPLIANCE. T HEREFORE, CIT(A) HAD PASSED EXPARTE ORDERS. HOWEVER, WE FIND THAT IN THE APPEAL BEFORE CIT(A) THE ASSESSEE HAD RAISED SPECIFIC GROUND FOR LACK OF ADE QUATE OPPORTUNITY BY AO WHICH HAS NOT BEEN PROPERLY ADJUDICATED BY CIT(A). CIT(A) HAS REFERRED TO VARIOUS OPPORTUNITIES GIVEN BEFORE HIM AND BASED ON THAT HAS REJECTED THE GROUND RAISED BY THE ASSESSEE WITHOUT DECIDING ON M ERIT AS TO WHETHER ADEQUATE OPPORTUNITY HAD BEEN GIVEN TO THE ASSESSEE BY THE AO OR NOT. ITA NO.1218 & 1219/M/12 A Y .05-06 2 CIT(A) HAS ALSO DISMISSED THE GROUND RELATING TO CL AIM OF BAD DEBT AND CLAIM OF EXEMPTION UNDER SECTION 54F OF THE ACT. THE AO H AD ALSO DECIDED THESE ISSUES EXPARTE. WE ALSO NOTE THAT AO HAD DISALLOWED CLAIM OF EXEMPTION UNDER SECTION 54F WITHOUT ANY DISCUSSION IN THE ORD ER WHICH SHOWS NON APPLICATION OF MIND TO THE ISSUE. IN SUCH A SITUATI ON IN OUR VIEW THE ORDERS PASSED BY THE AUTHORITIES BELOW CAN NOT BE UPHELD. SIMILAR IS THE POSITION IN RESPECT OF PENALTY ORDER IN WHICH GROUND REGARDING LACK OF PROPER OPPORTUNITY HAD NOT BEEN ADJUDICATED BY CIT(A). 3. THEREFORE IN OUR VIEW, IN THE INTEREST OF JUSTIC E, THE ISSUES ARE REQUIRED TO BE ADJUDICATED AFTER ALLOWING ONE MORE OPPORTUNI TY TO THE ASSESSEE. TO ENSURE COMPLIANCE, THE ASSESSEE HAS BEEN DIRECTED T O APPEAL BEFORE CIT(A) ON 8.4.2013 AND RENDER ALL ASSISTANCE IN THE MATTER OF DISPOSAL OF APPEAL. THE ASSESSEE VIDE LETTER DATED 26.6.2002 HAS GIVEN AN UNDERTAKING THAT HE WILL APPEAR BEFORE CIT(A) ALONG WITH HIS REPRESENTATIVE AND FILE NECESSARY SUBMISSIONS AND DETAILS AS MAY BE REQUIRED BY THE C IT(A). WE, THEREFORE, SET ASIDE THE ORDERS OF CIT(A) AND RESTORE THE MATTER B ACK TO HIM FOR PASSING FRESH ORDERS AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.02.2013. SD/- SD/- (I.P. BANSAL) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED: 26.2. 2013. JV. ITA NO.1218 & 1219/M/12 A Y .05-06 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.