MADHURI SHARAD KORGAONKAR, MUMBAI V. DCIT 10(1), MUMBAI

ITA 1382/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2364 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 09-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SHARAD KORGAONKAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.1383 /MUM/2015(A.Y.2008-09) ITA NO.1384/MUM/2015(A.Y.2009-10) SHRI. SHARAD SAKHARAM KORGAONKAR, 7, SUBHASH NIKETAN, TEJPAL SCHEME MAIN ROAD, VILE PARLE (EAST) MUMBAI -400 057 PAN:AGCPK 0721A ... APP ELLANT VS. THE DCIT 10(1), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400020 .... RESPONDENT ITA NO.1381 /MUM/2015(A.Y.2008-09) ITA NO.1382/MUM/2015(A.Y.2009-10) SMT.MADHURI SHARAD KORGAONKAR, 7, SUBHASH NIKETAN, TEJPAL SCHEME MAIN ROAD, VILE PARLE (EAST) MUMBAI -400 057 PAN:ACLPK 9600P ... APPELLANT VS. THE DCIT 10(1), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400020 ..... RESPONDENT APPELLANTS BY : SHRI SHARAD KORGAONKAR RESPONDENT BY : SHRI JAVED AKHTAR DATE OF HEARING : 25/07/2016 DATE OF PRONOUNCEMENT : 29/07/2016 2 ITA NO.1383 /MUM/2015(A.Y.2008-09)& OTHERS ORDER PER G.S.PANNU,A.M: THE CAPTIONED ARE FOUR APPEALS PREFERRED BY TWO DI FFERENT ASSESSEES PERTAINING TO ASSESSMENT YEARS 2008-09 AN D 2009-10. 2. IN ALL THE APPEALS, THE PRELIMINARY ISSUE ARISES FROM THE ACTION OF THE CIT(A) IN DISMISSING THE APPEALS OF THE ASSESSE E EX-PARTE NOTICING THE ABSENCE OF THE ASSESSEE WITHOUT ADJUDICATING ON THE MERIT OF THE ISSUES RAISED BY THE ASSESSEE. 3. ITA NO.1383/MUM/2015 FOR ASSESSMENT YEAR 2008-09 IS TAKEN AS THE LEAD CASE. THIS APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) -22 MUMBAI DATED 22/12/2014, WHICH IN TURN ARISES OUT OF AN ORDER DATED 19/02/2013 PASSED UNDER SECTION 179 R .W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 4. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESS EE IS AN INDIVIDUAL, WHO WAS DIRECTOR IN ONE CONCERN NAMELY M/S. SIDDHAR TH INFRAPROJECTS PVT. LTD. THE ASSESSING OFFICER NOTICED THAT CONSE QUENT TO THE ASSESSMENT OF M/S. SIDDHARTH INFRAPROJECTS PVT. LTD . FOR ASSESSMENT YEAR 2008-09 AND 2009-10, THE TAX LIABILITY DETERMI NED WAS OUTSTANDING FOR LONG AND NOT BEING RECOVERED. ACCORDINGLY, HE ISSUED A SHOW CAUSE NOTICE UNDER SECTION 179 OF THE ACT TO THE ASSESSEE , WHO WAS ONE OF THE DIRECTORS OF THE SAID CONCERN. AFTER CONSIDERING T HE SUBMISSIONS PUT- FORTH BY THE ASSESSEE, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PAY-UP THE OUTSTANDING DEMAND OF RS.390.39 LACS F OR ASSESSMENT YEARS 2008-09 IN TERMS OF SECTION 179 OF THE ACT. THIS ACTION OF THE ASSESSING OFFICER WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE 3 ITA NO.1383 /MUM/2015(A.Y.2008-09)& OTHERS CIT(A) ON VARIOUS GROUNDS, WHICH HAS BEEN REPRODUCE D BY THE CIT(A) IN THE IMPUGNED ORDER. THE CIT(A), HOWEVER, HAD NOTIC ED THAT INSPITE OF ISSUANCE OF VARIOUS NOTICES, NONE ATTENDED ON BEHA LF OF THE ASSESSEE AND, THEREFORE, SHE INFERRED THAT ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL AND HENCE THE SAME WAS DISMISSE D. 5. AT THE TIME OF HEARING, IT WAS PUT TO THE LD. DE PARTMENTAL REPRESENTATIVE THAT THE ORDER OF THE CIT(A) IS NOT IN CONSONANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE ACT . SECT ION 250(6) OF THE ACT OBLIGATES THE CIT(A) TO DISPOSE OF THE APPEAL BY ST ATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR HIS DECISION. IN THE PRESENT CASE, THE CIT(A) HAS NOT ADDRESSED HERS ELF TO THE MERITS OF THE GROUNDS OF APPEAL RAISED BEFORE HER AND INSTEAD THE APPEAL HAS BEEN DISMISSED BY MERELY NOTICING THE ABSENCE OF T HE ASSESSEE. THE APPROACH PRESCRIBED IN SECTION 250(6) OF THE ACT IS CLEARLY MISSING IN THE PRESENT CASE AND, THEREFORE, IN OUR VIEW, THE APPEA L HAS NOT BEEN APPROPRIATELY DISPOSED OF BY THE CIT(A). THUS, ON THIS ASPECT ITSELF THE ORDER OF THE CIT(A) IS UNTENABLE AND DESERVES TO B E SET ASIDE. AT THE TIME OF HEARING, SHRI SHARAD KORGAONKAR, THE ASSESS EE APPEARED IN PERSON, AS ALSO FOR THE OTHER ASSESSEE, SMT. MADHUR I SHARAD KORGAONKAR AND SUBMITTED THAT IF THE MATTER IS REMANDED BACK TO THE FILE OF CIT(A), ASSESSEE SHALL APPEAR BEFORE C IT(A) WITHOUT FAIL. 6. IN VIEW OF THE AFORESAID DISCUSSION, IN OUR VIEW , IT WOULD BE IN THE FITNESS OF THINGS THAT THE ORDER OF THE CIT(A) IS S ET-ASIDE AND THE SAME IS RESTORED BACK TO HIS FILE FOR ADJUDICATION AFRES H IN ACCORDANCE WITH LAW, AFTER PROVIDING REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE 4 ITA NO.1383 /MUM/2015(A.Y.2008-09)& OTHERS ASSESSEE. IN THIS MANNER, THE APPEAL OF THE ASSESS EE IS ALLOWED TO THE ABOVE EXTENT. 7. SINCE THE FACTS AND CIRCUMSTANCES IN THE OTHER APPEALS ARE PARI- MATERIA TO THOSE CONSIDERED BY US IN THE APPEAL OF SHRI. SHARAD SAKHARAM KORGAONKAR IN ITA NO. 1383/MUM/2015 FOR AS SESSMENT YEAR 2008-09, OUR DECISION THEREIN SHALL APPLY MUTATIS MUTANDIS IN OTHER APPEALS ALSO. 8. IN THE RESULT, ALL THESE APPEALS ARE PARTLY ALLO WED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/07/2016 SD/- SD/- (RAVISH SOOD) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 29/07/2016 VM , 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, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI