SULAKSHANA SECURITIES LTD, MUMBAI V. ITO 1(3)(3), MUMBAI

ITA 1273/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49341 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 30-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 16-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Assessee Lawyers: VIDYA SHETTY
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E,MUMBAI BEFORE SHRI D.K. AGARWAL (JM) & SHRI J. SUDHAKAR RE DDY (AM) I.T.A.NO.1273/MUM/2010 (A.Y. 2004-05) SULAKSHANA SECURITIES LTD., 4 TH FLOOR, MAFATLAL HOUSE, BACKBAY RECLAMATION, MUMBAI-400 020. PAN: AABCS1783L VS. INCOME-TAX OFFICER-1(3)(3), 5 TH FLOOR, AAYKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. APPELLANT RESPONDENT APPELLANT BY MS. VIDYA SHETTY. RESPONDENT BY SHRI G .P. TRIVEDI. O R D E R PER D.K. AGARWAL, JM : THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 10-11-2009 PASSED BY THE LD. CIT(A) FOR THE ASSESSM ENT YEAR 2004-05. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE COMPANY DERIVES INCOME FROM HOUSE PROPERTY & OTHER SOURCES, FILED RETURN DECLARING TOTAL LOSS OF RS.19,69,937/-. HOWEVER, THE ASSESSMENT WAS COMPLET ED AT AN INCOME OF RS.40,83,100/- VIDE ORDER DATED 18-12-2006 PASSED U/S. 143(3) OF THE I.T. ACT, 1961 (THE ACT). ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE DID NOT APPEAR AND ACCORDINGLY THE LD. CIT(A), IN THE ABSENCE OF A NY SUPPORTING MATERIAL, DECIDED THE ISSUE EX PARTE AND THEREBY DISMISSED TH E APPEAL. ITA NO.1273/M/2010. 2 3. BEING AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VALIDITY OF THE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, SUSTENANCE OF ADDITION AND DISALLOWANCE MADE BY THE AO. 4. AT THE TIME OF HEARING, BOTH PARTIES HAVE AGREE D THAT THEY HAVE NO OBJECTION IF THE MATTER IS RESTORED BACK TO THE FIL E OF THE LD. CIT(A). 5. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THERE IS NO DISPUTE THAT BEFO RE THE LD. CIT(A) THE ASSESSEE DID NOT APPEAR DESPITE THE FACT THAT THE LD. CIT(A) HAS PROVIDED MORE THAN ONE OPPORTUNITIES TO THE ASSESSEE. HOWEVER, WE FIND THA T IT HAS BEEN OBSERVED BY THE LD. CIT(A) IN PARA-3 OF HIS ORDER THAT THE LAST NOT ICE DATED 27-10-2009 FIXING THE HEARING FOR 09-11-2009 SENT TO THE ASSESSEE BY SPE ED POST WAS SERVED ON 20- 10-2009 AND SINCE THERE WAS NO COMPLIANCE, THE LD. CIT(A) PASSED EX PARTE ORDER DISMISSING THE APPEAL. IN THE ABSENCE OF ANY CLARIF ICATION ON RECORD BY THE REVENUE TO SHOW AS TO HOW THE NOTICE ISSUED ON 27-1 0-2009 WAS SERVED UPON THE ASSESSEE ON 20-10-2009, I.E. PRIOR TO THE ISSUA NCE OF NOTICE OF HEARING, AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT TH E MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE TO DECIDE THE APPEAL AFRESH AND ACCORDING TO LAW AFTER PROVIDING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, TH EREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1273/M/2010. 3 ORDER PRONOUNCED ON THE 24TH DAY OF JUNE, 20 11. SD/- SD/- (J. SUDHAKAR REDDY) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 24TH JUNE , 2011. NG: COPY TO : 1. ASSESSEE. 2. DEPARTMENT. 3 CIT(A)-2, MUMBAI. 4 CIT-I, MUMBAI. 5.DR,E BENCH, MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. ITA NO.1273/M/2010. 4 DETAILS DATE INITIALS DESIGNA TION 1. DRAFT DICTATED ON 20-06-11 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 20-06-11 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/ AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER