IMAM BAIG MIRZA, MUMBAI V. ITO 17(3)(2), MUMBAI

ITA 1248/MUM/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1582 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 16-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R V JAIN
• Assessee Lawyers: ABDUL RAZZAQ
• Keywords: Set aside
• Section: 143(3)

Judgement Text

ITA NO. 1248/MUM/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI R S PADVEKAR, JUDICIAL MEMBER ITA NO. 1248/MUM/2010 (ASST YEAR 2005-06) IMAM BAIG MIRZA INDIAN BAKRY 133 MOULANA AZAD ROAD MUMBAI VS THE INCOME TAX OFFICER 17(3)(2), MUMBAI (AP PELLANT) (RESPONDENT) PAN AANPM5995M ASSESSEE BY: SHRI ABDUL RAZZAQ REVENUE BY: SHRI R V JAIN O R D E R PER R S PADVEKAR: IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A)-29, MUMBAI DATED 30.12.2009 FOR THE ASSES SMENT YEAR 2005-06. 2 THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GR OUNDS: I) THE ITO ERRED IN PASSING THE ORDER U/S 143(3) OF THE ACT ON 31.12.2007. II) THE ITO DISALLOWED RS. 16,272/-. IT IS 15% OF T OTAL VARIOUS EXPENSES RS.1,08,480/-. THE LD IT ASSUMED THAT I IS EXCESS EXPENSES CLAIMED BY THE ASSESSEE. THE ITO IS NOT A PERSON WHO CAN JUDGE THE PROPER EXPENSES OF THE ASSESSEES BUSINES S. SO, SAID SHOULD BE DELETED. III) THE LD ITO ERRED TO ADD RS. 2 LAC IS UNEXPLAIN ED LOAN/CASH CREDIT. ITA NO. 1248/MUM/2010 2 3 I HAVE HEARD THE PARTIES. THE ASSESSEE DERIVES I NCOME FROM BAKERY BUSINESS AS WELL AS ROYALTY AND SOME AGRICULTURAL I NCOME. THE RETURN FILED BY THE ASSESSEE FOR AY 2004-05 WAS SELECTED FOR SCR UTINY AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT. THE AO MADE THE ADDITION OF RS. 2 LACS TOWARDS UNEXPLAINED LOANS/CASH CREDIT . THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD CIT(A), WHO CONFIRMED THE O RDER OF THE AO. 4 THE LD COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THERE WAS A CHANGE OF JURISDICTION OF LD CIT(A). THE FIRST NOTI CE WAS ISSUED BY THE CIT(A)- 22, MUMBAI. SUBSEQUENTLY, THE JURISDICTION WAS CHAN GED TO LD CIT(A)-29, MUMBAI. IT IS ARGUED THAT THE LD CIT(A) PASSED ORD ER ON 3.1.2010 BY OBSERVING THAT THE ASSESSEE DID NOT APPEAR ON 29.1 2.2009. IT IS ARGUED THAT THE ASSESSEE DID NOT RECEIVE THE NOTICE OF HEARING THAT THE CASE WAS FIXED ON 29.12.2009. HE FURTHER ARGUED THAT THE ASSESSEE APP ROACHED THE LD CIT(A) AFTER THE RECEIPT OF THE ORDER DATED 2.2.2010 TO FI ND OUT WHETHER NOTICE WAS ISSUED OR NOT. BUT, THERE WAS NO ACKNOWLEDGE IN T HE FILE OF THE LD CIT(A). IT IS ARGUED THAT THE ASSESSEE APPEARED BEFORE THE LD CIT(A)-22 ON 18.2.2009 AND ALSO ON 17.3.2009 AND MADE A SUBMISSION. SUBSE QUENTLY, THE LD CIT(A)-22 ISSUED ANOTHER NOTICE FIXING THE DATE ON 17.9.2009 AND ON THAT DATE ALSO, THE ASSESSEES COUNSEL APPEARED BEFORE T HE LD CIT(A) AND HE WAS TOLD THAT THE JURISDICTION WOULD BE CHANGED AND THE NOTICE WOULD BE ISSUED. THEREAFTER, THE ASSESSEE DID NOT RECEIVE THE NOTICE . HE, THEREFORE, PLEADED THAT THERE WAS NO OPPORTUNITY TO THE ASSESSEE TO MA KE EFFECTIVE REPRESENTATION. MOREOVER, THE ASSESSEE HAS NEVER RE QUESTED THE LD CIT(A) THAT THE CASE SHOULD BE DISPOSED OFF ON THE BASIS OF THE WRITTEN SUBMISSIONS. HE, THEREFORE, PLEADED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE LD CIT(A) TO GIVE OPPORTUNITY TO THE AS SESSEE. I HAVE ALSO HEARD THE LD DR. ITA NO. 1248/MUM/2010 3 5 LD D.R. HAS NO OBJECTION TO SET ASIDE THE ISSUE I N RESPECT OF THE ADDITION OF RS. 2 LACS TO THE FILE OF THE LD CIT(A) . HENCE, WITH THE CONSENT OF BOTH THE PARTIES, I SET ASIDE THE ISSUE IN RESPECT OF THE ADDITION OF RS. 2 LACS TO THE FILE OF THE CIT(A). ACCORDINGLY, THE ORDER OF THE LD CIT(A) SET ASIDE AND REMAND THE ISSUE BACK TO HIS FILE FOR DECIDING THE ISSUE AFRESH AS PER PROVISIONS OF LAW AND AFTER GIVING REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 6 IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 4 TH DAY OF JUNE 2010. SD/- R S PADVEKAR JUDICIAL MEMBER PLACE: MUMBAI : DATED: 4 TH JUNE 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI