DLH KAMLA DEVELOPERS, MUMBAI V. DCIT - CC 3(4), MUMBAI

ITA 1372/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0134 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 1372 /MUM/2019 ASSESSMENT Y EAR: 2010 - 11 DLH KAMLA DEVELOPERS, GROUND FLOOR, SHANTI VIMAL, P.M. ROAD, VILE PARLE (EAST), MUMBAI - 400057 PAN: AAHFD0790K VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 3(4), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SAURABH KUMAR RAI (DR) DATE OF HEARING : 27 /05 /202 1 DATE OF PRONOUNCEMENT: 09 / 0 7 /202 1 O R D E R THIS IS AN APPEAL BY T HE ASSESSEE AGAINST ORDER DATED 24.12.2018 OF LEARNED COMMISSIO NER OF INCOM E TA X (APPEALS) - 51 , MUMBAI FOR THE A SSESSMENT YEAR 2010 - 11 . 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, CONSIDERING THE NATURE OF DISPUTE, I PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE AFTER H EARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND BASED ON MATERIALS ON RECORD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS A PARTNERSHIP FIRM AND I S STATED TO BE ENGAGED IN THE BUSINESS AS BUILDERS, PROPERTY DEVELOPERS AND C ONTRACTORS. A SEARCH AND SEIZU RE OPER ATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 WAS CARRIED OUT IN CASE OF THE ASSESSEE ON 10.12.2013. AS A RESULT OF SUCH SEARCH AND S EIZURE OPERATION PROCEEDINGS UNDER SECTION 153A OF THE ACT WAS INITIATED AGAINST THE ASSESSEE. AS OBSERVED BY THE ASSESSING OFFICER (AO) , IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A AS WELL AS SECTION 142(1) OF THE ACT, T HE ASSESSEE FILED CERTAIN PRELIMINARY DETAILS IN THE OFFICE. HOWEVER, THE 2 ITA NO. 1372 / MUM/2019 A SSESSMENT YEAR: 20 10 - 11 ASSESSEE DID NOT FULLY C OMPLY WITH THE NOTICE ISSUED UNDER SECTION 142 (1) OF THE ACT. THEREFORE, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 143 (3) R.W.S 153A OF THE ACT BY DISALLOWING PROFESSIONAL FEE OF RS. 10,00,000/ - . AGAINST THE ASSESSMENT ORDER SO PASSED THE ASSESSEE PREFERRED APPEAL BEFORE LEARNED COM MISSIONER (APPEALS). HOWEVER, ASSESSEES APPEAL WAS DISMISS ED. 4. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, LEARNED COMMISS IONER (APPEALS) HAS DECIDED ASSESSEES APPEAL EX - PARTE. IT IS FURTHER N OTICE D FROM THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS), THE MAIN PERSON OF THE ASSESSEE GROUP SHRI JITENDRA JAIN, SINCE , WAS IN JUDICIAL/POLICE CUSTODY PROPER COMPLIANCE COULD NOT BE MADE EITHER BEFORE THE AO OR BEFORE LEARNED COMMISSIONER (APPEA LS). THUS, IT IS A FACT THAT ASSESSEES APPEAL BEFORE LEARNED COMMISSI ONER (APPEALS) WENT UNREPRESENTED AND DUE TO LACK OF PROPER REPRESENTATION, THE ADDITION MADE BY THE AO WAS SUSTAINED. THUS, IN MY CONSIDERED OPINION , IN THE INTEREST OF FAIR PLAY AND JU STICE , ASSESSEE DESERVES ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFOR E LEARNED COMMISSIONER (APPEALS). IN VIEW OF THE AFORESAID, I SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR AFRESH ADJUDICA TION AFTER REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JULY , 2021 . SD/ - (SAKTIJI T DEY) JUDICIAL MEMBER MUMBAI ; DATED: 09 / 07 /202 1 ALINDRA, PS 3 ITA NO. 1372 / MUM/2019 A SSESSMENT YEAR: 20 10 - 11 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI