RAMESH KOCHA, MUMBAI V. ITO 24(3)(4), MUMBAI

ITA 1379/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9817 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA LD
• Assessee Lawyers: DHARMESH SHAH LD
• Keywords: Depreciation; Principle of natural justice; Additional evidence
• Section: 143(3); 148

Judgement Text

ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI . , , BEFORE SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NOS.1379 &1380/MUM/2017 ( / ASSESSMENT YEAR: 2009-10) RAMESH KOCHA 603, BHARAT APARTMENTS GANDHI GARAM ROAD,JUHU MUMBAI-400 049 / VS. INCOME TAX OFFICER - 24 ( 3 )( 4 ) C-13,BKC MUMBAI ./ ./ PAN/GIR NO. AMEPK-8638-E ( ! /APPELLANT ) : ( ' ! / RESPONDENT ) REVENUE BY : N.HEMALATHA, LD. DR ASSESSEE BY : DHARMESH SHAH,LD.AR / DATE OF HEARING : 22/03/2018 / DATE OF PRONOUNCEMENT : 23/03/2018 /ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEALS BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009- 10 CONTEST SEPARATE ORDERS OF LD. FIRST APPELLATE A UTHORITY, WHICH WE DISPOSE-OFF BY WAY OF THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE & BREVITY. FIRST, WE TAKE UP ITA NO. 1380/MUM/2017 WH ICH CONTEST THE ORDER 2 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-42 [CIT (A)], MUMBAI, APPEAL NO.CIT(A)-42/IT-47/11-12 DATED 06/10/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAME D BY LD. INCOME TAX OFFICER -24(3)(4), MUMBAI [AO] U/S 143(3) OF THE IN COME TAX ACT,1961 ON 29/12/2011 WHEREIN THE INCOME OF THE ASSESSEE HAS B EEN DETERMINED AT RS.19,67,570/- AFTER CERTAIN ADDITIONS AS AGAINST NIL RETURN FILED BY THE ASSESSEE ON 30/09/2009. DURING THE IMPUGNED AY, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURING OF CHLORINATORS, EVAPORATORS & FLEXIBLE CONNECTORS ETC. 2.1 THE FIRST ISSUE UNDER APPEAL IS ADDITION OF RS. 7,33,565/- ON ACCOUNT OF LEGAL EXPENSES SINCE THE SAME, IN THE OPINION OF LD. AO, WERE NOT INCURRED FOR THE PURPOSE OF BUSINESS AND MOREOVER, TDS DEDUC TED THERE-FROM WAS NOT DEPOSITED WITHIN THE STIPULATED TIME LIMIT. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [AR] PLEADED FOR ADMISS ION OF ADDITIONAL EVIDENCES IN SUPPORT OF THE CLAIM ON THIS ACCOUNT. KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, THE ISSUE STANDS REMI TTED BACK TO THE FILE OF LD. AO WITH A DIRECTION TO ASSESSEE TO SUBSTANTIATE HIS CLAIM AND DEMONSTRATE THAT THESE EXPENSES WERE INCURRED FOR THE PURPOSE O F ASSESSEES BUSINESS AND FURTHER THE PROVISIONS OF TDS HAS DULY BEEN COM PLIED WITH AGAINST THE SAME. GROUND NOS. 1 & 2 STANDS ALLOWED FOR STATISTI CAL PURPOSES. 2.2 GROUND NO. 3 & 4 CONTEST ADHOC DISALLOWANCE AGAINST TELEPHONE EXPENSES, MOTOR EXPENSES & DEPRECIATION AND SUNDRY EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT. KEEPING IN VIEW, THE REA SONABLE DISALLOWANCE 3 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 RATE OF 10% & 20%, THE SAME DO NOT REQUIRE ANY INTE RFERENCE ON OUR PART AND HENCE, DISMISSED. 3.1 GROUND NUMBERS 5 & 6 PLEAD FOR ALLOWANCE OF BRO UGHT FORWARD LOSSES OF AY 2007-08. THE FACTS OF THE SAME ARE THAT THE A SSESSEE, IN THE RETURN OF INCOME, CLAIMED BROUGHT FORWARD BUSINESS LOSS OF EA RLIER YEARS AMOUNTING TO RS.42,72,212/- AND AFTER ADJUSTING THE CURRENT I NCOME OF RS.11,62,964/-, CARRIED FORWARD THE BALANCE AMOUNT OF RS.31,09,248/ -. IT WAS NOTED THAT THE LOSS WAS INCURRED IN AY 2006-07 AND SINCE ASSESSEE FAILED TO FURNISH SUFFICIENT DOCUMENTARY EVIDENCES INCLUDING LOSS RET URNS OF EARLIER YEARS, THE SAME WAS DENIED TO THE ASSESSEE. AGGRIEVED, THE ASS ESSEE CARRIED THE MATTER BEFORE LD. CIT(A). 3.2 THE LD. CIT(A) NOTED THAT THE CORRECT FIGURES O F BROUGHT FORWARD LOSSES WAS RS.26,93,383/-. THE LD. CIT(A), ON PAGE NUMBERS 3 TO 5 OF THE IMPUGNED ORDER, NOTED THE CONSTITUTION / RE-CONSTITUTION HISTORY OF AN ERSTWHILE FIRM NAMELY BABUBHAI NAROTTAMDAS & CO. AND NOTED THAT W.E.F. 22/09/2006, THE ASSESSEE CARRIED ON THE BUSINESS OF THE SAID FIRM AS SOLE SURVIVING PARTNER / PROPRIETOR AS WELL THE AGENT OF COURT RECEIVER. THE FINANCIALS OF THE FIRM WERE PREPARED ON 22/09/2006 AND THE TOTAL LOSS ARISING FROM THE BUSINESS WAS DETERMINED AND THE BUSINESS W AS TAKEN BY THE ASSESSEE WHO FILED RETURN OF INCOME IN THE CAPACITY OF PROPRIETOR FOR THE BALANCE PERIOD OF SIX MONTHS OF FY 2006-07 UNDER HI S OWN INDIVIDUAL NAME. THE TOTAL LOSS SO DETERMINED UP-TO 22/09/2006 WAS R S.42,72,212/- AND ACCORDINGLY THE ASSESSEES 50% SHARE THEREIN CAME T O RS.21,36,108/-. 4 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 AFTER ADDING FURTHER LOSS OF RS.5,55,990/- INCURRED BY THE ASSESSEE AFTER 22/09/2006, THE TOTAL LOSS THUS WORKED OUT TO RS.26 ,92,096/-. THE SET-OFF OF THE SAME HAS BEEN CLAIMED BY THE ASSESSEE IN AY 200 8-09 ONWARDS BY PLACING RELIANCE ON THE DECISION OF APEX COURT IN SAKTHI TRADING CO. [250 ITR 871] . THE AMOUNT OF RS.6,28,694/- HAS ALREADY BEEN SET- OFF BY THE ASSESSEE AGAINST THE SAME IN AY 2008-09 AND ACCORDI NGLY THE BALANCE AMOUNT OF RS.20,63,402/- HAS BEEN LEFT TO BE SET-OF F IN SUBSEQUENT YEARS. 3.3 HOWEVER, UPON PERUSAL, LD. CIT(A) NOTED THAT TH E DETAILS FILED DID NOT MATCH WITH THE RETURNS OF INCOME FOR RESPECTIVE AY AND THE CLAIM OF BROUGHT FORWARD LOSSES HAS NOT BEEN CLEARLY MENTIONED IN RE TURNS FOR AYS 2007-08 & 2008-09. FINALLY, AFTER PERUSING THE PROVISIONS OF SECTION 78 AND PLACING RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COUR T RENDERED IN PRAMOD MITTAL VS. CIT [2012 205 TAXMAN 444], THE SET-OFF OF THE SAME HAS BEEN DENIED TO THE ASSESSEE AGAINST WHICH THE ASSESSEE I S IN FURTHER APPEAL BEFORE US. 3.4 THE PRIMARY ARGUMENT OF LD. AR REVOLVES AROUND THE FACT THAT IT WAS THE CASE OF SUCCESSION BY INHERITANCE AND THEREFORE, THE PROVISIONS OF SECTION 78 WERE NOT APPLICABLE TO THE FACTS OF THE CASE AND HENCE, THE SET- OFF OF THE LOSSES WAS ALLOWABLE TO THE ASSESSEE. TH E LD. DR PLACED RELIANCE ON THE STAND OF LD. CIT(A). 3.5 WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS A ND PERUSED THE IMPUGNED ORDER. AT THE OUTSET, IT IS NOTED THAT LOS S OF RS.5,55,990/- INCURRED 5 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 BY THE ASSESSEE IN THE CAPACITY OF PROPRIETOR FOR A Y 2007-08 HAS COMPLETELY BEEN SET-OFF IN AY 2008-09 AND THE SAME IS, UNDISPU TEDLY, IN ORDER. 3.6 NOW, WE ARE CONCERNED WITH SET-OFF OF BALANCE A MOUNT OF RS.20,63,402/- WHICH IS NOTHING BUT ASSESSEES OWN SHARE OF LOSS TO THE EXTENT OF 50% IN ERSTWHILE FIRM AS ON THE DATE OF D ISSOLUTION I.E. 22/09/2006. IN OUR OPINION, THIS LOSS HAS BEEN INCURRED BY THE FIRM AND EXCLUSIVELY BELONGS TO THE FIRM ONLY AND IS NOT AVAILABLE FOR S ET-OFF TO THE PARTNER IN INDIVIDUAL CAPACITY. CLEARLY, THE FIRM AND INDIVIDU AL ARE SEPARATE LEGAL / TAXABLE ENTITIES IN THE EYES OF LAW. FROM THE FACTS CULLED OUT BY LD. FIRST APPELLATE AUTHORITY, IT IS EVIDENT THAT THE ASSESSE E WAS ADMITTED AS PARTNER OF THE FIRM SINCE 22/10/1968 AND CONTINUED AS PARTN ER UP-TO 22/09/2006 WHEN THE OTHER PARTNER OF THE FIRM (ASSESSEES BROT HER) DIED AND THE FIRM WAS CONTINUED AS PROPRIETORSHIP CONCERN OF THE ASSE SSEE. THEREFORE, WE DO NOT FIND ANY STRENGTH IN THE ARGUMENT THAT IT IS A CASE OF SUCCESSION BY INHERITANCE SINCE NOTHING HAS BEEN INHERITED BY THE ASSESSEE RATHER HE WAS ALREADY A PARTNER IN THE FIRM SINCE INCEPTION STAGE OF THE FIRM. HENCE, ON FACTUAL MATRIX, WE FIND THAT THE ASSESSEES SHARE I N THE LOSSES OF THE ERSTWHILE FIRM BELONGED TO THAT FIRM ONLY AND COULD NOT BE SET-OFF BY ASSESSEE IN INDIVIDUAL CAPACITY. OUR VIEW IS DULY S UPPORTED BY THE JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN PRAMOD MITTAL VS. CIT [19 TAXMANN.COM 24] WHEREIN THE MATTER HAS BEEN ADJUDICATED BY THE HON BLE COURT IN THE FOLLOWING MANNER:- 3. WE HAVE CONSIDERED THE CONTENTIONS RAISED BY THE P ETITIONER BUT DO NOT FIND ANY MERIT IN THE SAME. PARTNERSHIP FIRM IS A SEPARATE AND DIS TINCT UNIT OF ASSESSMENT. THE 6 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 PETITIONER AND HIS BROTHER CONSTITUTED A PARTNERSHI P FIRM, WHICH WAS DISSOLVED W.E.F. 18.9.2004. THE PARTNERSHIP FIRM WILL HAVE TO BE ASS ESSED ON THE INCOME FOR THE PERIOD 1.4.2004 TO 18.9.2004. AFTER THE DISSOLUTION OF THE PARTNERSHIP FIRM, IT CEASED TO EXIST. THE PETITIONER IN TERMS OF THE DISSOLUTION DEED BEC AME ENTITLED TO FIXED ASSETS, CURRENT ASSETS AND LIABILITIES OF THE FIRM. THE OTHER PARTN ER WAS PAID THE CURRENT ACCOUNT BALANCE AND CAPITAL BALANCE STANDING TO HIS CREDIT. AFTER 1 8.9.2004, THE APPELLANT CONTINUED TO CARRY ON THE BUSINESS AS A SOLE PROPRIETOR. AS A SO LE PROPRIETOR THE INCOME EARNED WAS TAXABLE IN HIS HAND AS AN INDIVIDUAL AND AS A SEPAR ATE UNIT/PERSON. 4. SECTION 78(2) OF THE ACT READS: - '78. CARRY FORWARD AND SET OFF OF LOSSES IN CASE OF CHANGE IN CONSTITUTION OF FIRM OR ON SUCCESSION-- (1)** ** ** (2) WHERE ANY PERSON CARRYING ON ANY BUSINESS OR PR OFESSION HAS BEEN SUCCEEDED IN SUCH CAPACITY BY ANOTHER PERSON OTHERWISE THAN BY I NHERITANCE, NOTHING IN THIS CHAPTER SHALL ENTITLE ANY PERSON OTHER THAN THE PERSON INCU RRING THE LOSS TO HAVE IT CARRIED FORWARD AND SET OFF AGAINST HIS INCOME.' 5. SECTION 78(2) WILL APPLY TO THE FACTS OF THE PRESE NT CASE AS THE PARTNERSHIP FIRM WAS DISSOLVED AND CEASED TO EXIST W.E.F. 18.9.2004. THE PARTNERSHIP FIRM AFTER THE SAID DATE DID NOT CONTINUE. THIS IS NOT A CASE OF INHERITANCE DUE TO DEATH UNDER THE LAW OF SUCCESSION. THE LOSS SUFFERED BY THE APPELLANT AS A N INDIVIDUAL CAN BE INCLUDED AND ACCOUNTED FOR BUT NOT THE LOSS SUFFERED BY A DIFFER ENT PERSON/UNIT I.E. THE PARTNERSHIP FIRM. SECTION 78(2) OF THE ACT DOES NOT PERMIT THE SAID SET OFF OR DIMINUTION. 6. THE MADHUKANT M. MEHTA (SUPRA) THE SOLE PROPRIETOR HAD EXPIRED AND AFTER HIS DEATH HIS HEIRS HAD SUCCEEDED AND CARRIED ON BUSINESS IN PARTNERSHIP. IN THIS CASE THE LOSSES SUFFERED BY THE DECEASED PROPRIETOR WERE ALLOWED TO BE SET OFF IN TERMS OF SECTION 78(2) OF THE ACT. SECTION 78(2) CARVES OUT AN EXCEPTION I N CASE OF SUCCESSION BY INHERITANCE. THE GENERAL RULE IS THAT IT IS ONLY THE PERSON WHO HAS SUFFERED THE LOSS IS ENTITLED TO SET OFF AND ACCOUNT FOR THE SAME AND NOT A DIFFERENT OR A THIRD PERSON. IN THE CASE OF MADHUKANT M. MEHTA (SUPRA) IT WAS SUCCESSION BY INH ERITANCE. IN THE CASE OF SAROJ AGGARWAL (SUPRA) THERE WAS A PARTNERSHIP FIRM AND O N DEATH OF ONE OF THE PARTNERS, THE LEGAL HEIRS OF SAID PARTNER WERE INDUCTED AS PARTNE RS. IT WAS NOTICED THAT THE PARTNERSHIP WAS NOT DISSOLVED ON THE DEATH OF THE PARTNER. IN S UCH CIRCUMSTANCES, SECTION 78(2) WAS INTERPRETED AND BENEFIT OF CARRY FORWARD OF THE LOS S WAS GIVEN. THE PARTNERSHIP FIRM WHICH SUFFERED THE LOSSES CONTINUED THROUGHOUT WITH INDUCTION OF LEGAL HEIRS OF THE DECEASED PARTNERS. THIS AGAIN IS A CASE OF SUCCESSI ON BY INHERITANCE. 7. IT WILL BE APPROPRIATE TO REFER TO SECTION 170(1) OF THE ACT, WHICH READS: - 'SECTION 170. SUCCESSION TO BUSINESS OTHERWISE THAN ON DEATH. (1) WHERE A PERSON CARRYING ON ANY BUSINESS OR PROF ESSION (SUCH PERSON HEREINAFTER IN THIS SECTION BEING REFERRED TO AS THE PREDECESSOR) HAS BEEN SUCCEEDED THEREIN BY ANY OTHER PERSON (HEREINAFTER IN THIS SECTION REFERRED TO AS THE SUCCESSOR) WHO CONTINUES TO CARRY ON THAT BUSINESS OR PROFESSION, - 7 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 (A) THE PREDECESSOR SHALL BE ASSESSED IN RESPECT OF THE INCOME OF THE PREVIOUS YEAR IN WHICH THE SUCCESSION TOOK PLACE UP TO THE DATE OF S UCCESSION; (B) THE SUCCESSOR SHALL BE ASSESSED IN RESPECT OF T HE INCOME OF THE PREVIOUS YEAR AFTER THE DATE OF SUCCESSION.' 8. SECTION 170(1) IS VERY LUCID AND CLEAR. THE PARTNE RSHIP FIRM HAS TO BE ASSESSED IN RESPECT OF PROFIT AND GAINS FROM THE BUSINESS FOR T HE PERIOD UP TO 18TH SEPTEMBER, 2004. AFTER THE SAID DATE AND AFTER THE PARTNERSHIP FIRM WAS DISSOLVED, THE SOLE PROPRIETOR HAS TO BE ASSESSED IN RESPECT OF PROFITS AND LOSSES. TH E INCOME EARNED BY THE APPELLANT, AS AN INDIVIDUAL, WOULD INCLUDE HIS SHARE OF LOSS AS A N INDIVIDUAL BUT NOT THE LOSSES SUFFERED BY THE PARTNERSHIP FIRM. THE LOSSES SUFFERED BY THE PARTNERSHIP FIRM CANNOT BE SET OFF FROM THE INCOME OF THE APPELLANT AS AN INDIVIDUAL, IN THE ABSENCE OF ANY SPECIFIC PROVISION IN THE ACT. THE PARTNERSHIP FIRM AND INDI VIDUAL ARE TWO SEPARATE TAXABLE ENTITIES OR PERSONS UNDER THE ACT. 9. THERE IS NO CONTRADICTION BETWEEN SECTION 78(2) AN D SECTION 170(1). THEY PROVIDE FOR DIFFERENT SITUATIONS. SECTION 170(1) PROVIDES FOR A SITUATION WHERE A PERSON CARRYING ON BUSINESS OR PROFESSION IS SUCCEEDED TO BY ANOTHER P ERSON, WHO CONTINUES TO CARRY ON THAT BUSINESS. IN SUCH A SITUATION, THE SUB-SECTION SAYS THAT PREDECESSOR IN BUSINESS SHALL BE ASSESSED IN RESPECT OF THE INCOME OF THE P REVIOUS YEAR UP TO THE DATE OF SUCCESSION AND THE SUCCESSOR IN BUSINESS SHALL BE A SSESSED IN RESPECT OF THE INCOME AFTER THE DATE OF SUCCESSION. THIS SUB-SECTION ONLY PROVIDES AS TO WHO WILL BE ASSESSABLE IN RESPECT OF THE INCOME OF THE PREVIOUS YEAR FROM BUSINESS, WHEN THERE IS A CHANGE IN THE PERSON CARRYING ON THE BUSINESS BY SU CCESSION. SECTION 78(2) PROVIDES FOR A DIFFERENT SITUATION. IT SPEAKS ONLY OF CARRY FORWARD OF THE LOSSES OF A PERSON WHO WAS CARRYING ON A BUSINESS OR PROFESSION AND WHO WA S SUCCEEDED TO BY ANOTHER PERSON. IT MAKES NO PROVISION FOR THE DIVISION OF T HE INCOME OF THE PREVIOUS YEAR BETWEEN THE PREDECESSOR AND SUCCESSOR. IT SAYS THAT IT IS ONLY THE PERSON WHO INCURRED OR SUFFERED THE LOSS WHO WILL BE ENTITLED TO CARRY FORWARD THE SAME AND SET IT OFF, AND NO OTHER PERSON. AN EXCEPTION TO THIS RULE IS THE CASE OF SUCCESSION BY INHERITANCE. 10. IN THE PRESENT CASE THE ASSESSEE HAS CLAIMED TO SE T OFF THE LOSS OF RS. 22,40,193/- AGAINST HIS INCOME EARNED FOR THE PERIOD FROM 18.09 .2004 TO 31.03.2005. THE LOSS IS NOT THE LOSS SUFFERED BY HIM. IT IS THE LOSS SUFFERED B Y THE ERSTWHILE PARTNERSHIP FIRM BEFORE 18.09.2004 ON WHICH DATE THE FIRM WAS DISSOLVED. WH EN THE ASSESSEE TOOK OVER THE BUSINESS OF THE ERSTWHILE PARTNERSHIP FIRM, IT WAS NOT A CASE OF SUCCESSION BY INHERITANCE. THE APPEAL IS ACCORDINGLY DISMISSED. N O COSTS. UPON PERUSAL OF THE SAME, WE FIND THAT THE COURT AF TER CONSIDERING VARIOUS JUDICIAL PRONOUNCEMENTS INCLUDING THAT OF HONBLE A PEX COURT RENDERED IN CIT V. MADHUKANT M. MEHTA [2001 247 ITR 805] AS RELIED UPON BY LD. AR CONCLUDED THAT THE LOSSES OF THE DISSOLVED FIRM COU LD NOT BE SET-OFF BY THE 8 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 ASSESSEE PARTNER UPON SUCCESSION. WE ALSO FIND THAT THE CASE OF HONBLE APEX COURT RENDERED IN CIT V. MADHUKANT M. MEHTA [2001 247 ITR 805] WAS FACTUALLY DIFFERENT SINCE IN THAT CASE, THE ERS TWHILE PROPRIETORSHIP CONCERN OF THE FATHER WAS CARRIED ON BY THE LEGAL H EIRS BY FORMING PARTNERSHIP FIRM AND THE HONBLE COURT HELD THAT FI RM COULD CLAIM CARRY FORWARD OF LOSS OF SOLE PROPRIETOR AS IT WAS FOUND BY TRIBUNAL THAT THERE WAS SUCCESSION TO BUSINESS OF DECEASED. THEREFORE, THE SAME BEING FACTUALLY DIFFERENT, COULD NOT BE APPLIED TO THE FACTS OF THE CASE. RESULTANTLY, THIS GROUND OF ASSESSEES APPEAL STANDS DISMISSED. 3.7 THE ASSESSEES APPEAL ITA NO. 1380/MUM/2017 STA NDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. NOW, WE TAKE UP ITA 1379/MUM/2017 4. BY WAY OF THIS APPEAL, THE ASSESSEE CONTEST THE ORDER OF ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-42 [CIT(A)], M UMBAI, APPEAL NO.CIT(A)-42/IT-221/13-14 DATED 06/10/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAME D BY LD. INCOME TAX OFFICER -24(3)(4), MUMBAI [AO] U/S 143(3) READ WITH SECTION 148 OF THE INCOME TAX ACT,1961 ON 15/01/2014 WHEREIN THE ASSESSEE HAS BEEN SADDLED WITH FURTHER ADDITIONS OF RS.14,12,500/-. T HE SAME, UPON CONFIRMATION BY FIRST APPELLATE AUTHORITY, IS BEING CONTESTED BEFORE US. 5. THE LD. AR POINTED OUT THAT THE ASSESSEE COULD N OT AVAIL PROFESSIONAL REPRESENTATION TO EFFECTIVELY REPRESENT HIS CASE BE FORE LD. CIT(A) AND THEREFORE, DESERVES ANOTHER OPPORTUNITY OF BEING HE ARD IN VIEW OF THE 9 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 PRINCIPLE OF NATURAL JUSTICE. THE LD. DR OPPOSED TH E SAME THAT THE ONUS WAS ON ASSESSEE TO PURSUE HIS APPEAL BEFORE THE LOWER A UTHORITIES. 6. UPON DUE CONSIDERATION AND UPON PERUSAL OF IMPUG NED ORDER, WE FIND THAT THERE WAS REPEATED NON-COMPLIANCE TO HEARING N OTICES BEFORE LD. FIRST APPELLATE AUTHORITY AND THE ASSESSEE SOUGHT FREQUEN T ADJOURNMENTS WHICH REVEALS THAT THE ASSESSEE WAS NEGLIGENT IN ATTENDIN G THE APPELLATE PROCEEDINGS. HOWEVER, KEEPING IN VIEW THE FACT THAT THE ASSESSEE-IN-PERSON WAS ATTENDING THE PROCEEDINGS AND COULD NOT AVAIL P ROFESSIONAL REPRESENTATION & KEEPING IN VIEW THE PRINCIPLE OF N ATURAL JUSTICE, WE SEE NO HARM OR PREJUDICE IN PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE TO MAKE EFFECTIVE REPRESENTATION BEFORE FIRST APPELLATE AUT HORITY. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE ISSUE, THE MATTER STAN D REMITTED BACK TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION WITH A DIREC TION TO THE ASSESSEE TO SUBSTANTIATE HIS CASE FORTHWITH FAILING WHICH LD. C IT(A) SHALL BE AT LIBERTY TO DISPOSE-OFF THE SAME AS PER LAW ON THE BASIS OF MAT ERIAL AVAILABLE ON RECORD. THE ASSESSEES APPEAL STANDS ALLOWED FOR ST ATISTICAL PURPOSES. CONCLUSION 7. RESULTANTLY, BOTH THE APPEALS STANDS PARTLY ALLO WED IN TERMS OF OUR ABOVE ORDER. 10 ITA NOS.1379 &1380/MUM/2017 RAMESH KOCHA ASSESSMENT YEAR: 2009-10 ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MARCH, 2018. SD/- SD/- (C. N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 23.03.2018 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. $, , , , / DR, ITAT, MUMBAI 6. -. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI