UNIQUE PROPERTIES & SECURITIES P.LTD, MUMBAI V. DCIT CEN CIR 38, MUMBAI

ITA 1279/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8341 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 11-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JM AND SHRI RAJESH KUMAR , AM ITA NO. 1279/ MUM/ 2013 ( ASSESSMENT YEAR: 2009-10) M/S. UNIQUE PROPERTIES & SECURITIES PVT. LTD. MALHOTRA HOUSE, 4TH FLOOR OPP. G.P.O., FORT, MUMBAI 400001 / VS. DCIT, CENTRAL CIRCLE - 39, AAYAKAR BHAVAN M.K. ROAD MUMBAI 400020 ./ PAN : AAACV0702G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAYAG JHA / RESPONDENT BY : S . PADMAJA / DATE OF HEARING : 16.2.2017 / DATE OF PRONOUNCEMENT : 16.2.2017 / O R D E R PER RAJESH KUMAR , AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)41, MUMBAI DATED 30.11.2012 FOR A.Y. 2009 - 10. 2. EARLIER THIS APPEAL WAS FIXED FOR HEARING ON 2.8. 2016 AND FOR WANT OF APPEARANCE ON BEHALF OF THE ASSESSEE, THIS APPEAL WAS DISMISSED EX - PARTE BY THE TRIBUNAL VIDE ORDER DATED 10.08.2016 . THEREAFTER THE ASSESSEE FILED MISC. APPLICATION BEARING MA NO.323/MUM/2016 FOR RECALL OF THE EX - PARTE ITA NO. 1279 / M/ 201 3 2 ORDER AND THE TRIBUNAL VIDE ITS ORDER DATED 16.12.2016 RECALLED THE EX - PARTE O RDER AND HENCE THE APPEAL WAS HEARD AND BEING DISPOSED OF BY THIS ORDER SECOND TIME. 3. IN THE FIRST , SECOND AND THIRD GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED THE GRIEVANCE THAT THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE FOURTH GROUND THE ASSESSEE IS AGGRIEVED BY THE ORDER OF LD.CIT(A) IN CONFIRMING THE ACTION OF THE AO IN COMPUTING THE LONG TERM CAPITAL GAINS INCOME AT RS.92,45,730/ - AS AGAINST DECLA RED LONG TERM CAPITAL GAINS INCOME E OF RS.59,14,927/ - . 4. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US THAT DUE TO CHANGE IN THE ADDRESS OF THE ASSESSEE THE NOTICES ISSUED FIXING THE DATE OF HEARING BY THE FAA DATED 29.9.2012 AND 01.11.2012 COULD NOT BE SERVED ON THE ASSESSEE. THEREAFTER, THE NOTICE WAS SERVED THROUGH ADDL.CIT, CENTRAL RANGE - IX, MUMBAI VIDE HIS LETTER DATED 21.11.2012 WHICH WAS SERVED UPON THE ASSESSEE AS CONFIRMED BY THE ADDL.CIT - CENTRAL CIRCLE - 38 VIDE HIS LETTER DATED 2.12.2012. HOWEVER, ON THE APPOINTED DATE OF HEARING NEITHER ASSESSEE APPEARED NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED IN THE OFFICE OF THE CIT (A) . CONSEQUENTLY, THE FAA DISPOSED OF THE APPEAL EX - PARTE AFTER CONSIDERING THE DOCUMENTS AND MATERIAL AVAILABLE BEFORE HIM. THE LD. AR SUBMITTED THAT THE ASSESSEE COULD NOT SUBMIT HIS ITA NO. 1279 / M/ 201 3 3 CASE BEFORE THE FAA FOR WANT OF SERVICE OF NOTICE DUE TO CHANGE OF ADDRESS AND LACK OF COMMUNICATION WHICH WAS INFORMED TO THE ADD.CIT, CENTRAL CIRCLE BUT COULD NOT BE INFORMED TO THE FAA. THE LD. AR REQUESTED THE BENCH THAT THE MATTER BE RESTORED TO THE FILE OF THE LD. CIT(A) SO THAT THE ISSUE COULD BE ADJUDICATED AFRESH AFTER CONSIDERING T HE CONTENTIONS AND SUBMISSION OF THE ASSESSEE IN THE MATTER . 5 . THE LD. DR, APPEARED TO B E FAIRLY AGREED WITH THE SUBMISSIONS OF THE LD.AR. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED BEFORE US. T HE FAA HAS PASSED AN EX - PARTE ORDER DUE TO NON - APPEARANCE OF THE ASSESSEE BEFORE HIM, WITHOUT CONSIDERING THE SUBMISSIONS AND CONTENTIONS OF THE APPELLANT. IN OUR OPINION THE ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE GET S ONE MORE OPPORTUNITY OF BEING HEARD BEFORE THE FAA . ACCORDINGLY, IN OBSERVANCE TO THE PRINCIPLE OF NATURAL JUSTICE, WE SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THE APPEAL TO THE FILE OF LD.CIT(A) FOR FRESH ADJUDICATION OF ISSUE AFTER PROVIDING NECESSARY OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ALSO MAKE IT CLEAR THAT IN THE SETTING ASIDE PROCEEDING, THE ASSESSEE WOULD CO - OPERATE WITH THE FAA FOR SPEEDY DISPOSAL OF THE APPEAL. ITA NO. 1279 / M/ 201 3 4 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW E D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.2.2017 . 16.2.2017 S D SD ( SAKTIJIT DEY ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 16 TH FEB, 2017 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI