SADRUDDIN A. LALANI, MUMBAI V. ITO 19(3)(4), MUMBAI

ITA 1389/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2223 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SADRUDDIN A LALANI
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 1389/MUM/2014 ASSESSMENT YEAR: 2009-10 MR. SADDRUDIN A. LALANI. 404, RANG MAHAL, 4 TH FLOOR, MOUNT MARY ROAD, BANDRA (W), MUMBAI- 400 050. PAN:- ABOPL9528R VS. THE IT O - 19 ( 3)(4 ) , AAYAKAR BHAVAN, M.K.ROAD, MUMBAI- 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. SADRUDDIN A. LALANI RESPONDENT BY : SHRI. NITIN WAGHMODE DATE O F HEARING: 2 0 / 10 / 2016 DATE OF PRONOUNCEMENT: 31/10/20 16 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 24/12/2013 PASSED BY THE LD. CIT(APPEALS)-30 MUMBAI FOR THE ASST. YEAR 2009-10, WHEREBY THE LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. AGGRIEVED BY THE IMPUGNED ORDER THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL RAISING FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 2 ITA NO 1389/MUM/2014 ASSESSMENT YEAR: 2009-10 1. NATURAL JUSTICE : 1.1 THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) -30, MUMBAI [LD. CIT (A)] ERRED IN PASSING THE APPELLATE ORDE R WITHOUT GIVING SUFFICIENT, PROPER AND ADEQUATE OPPORTUNITY OF BEIN G HEARD TO THE APPELLANT. 1.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, THE APPELLATE ORDER BE HELD AS BA D IN LAW AS THE SAME IS PASSED IN BREACH OF THE PRINCIPLES OF NATUR AL JUSTICE. WITHOUT PREJUDICE TO THE ABOVE 2.1 THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL O F THE APPELLANT ON THE GROUND THAT THE APPEAL WAS NOT IN PROPER FORM. 2.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH ACTION WAS CALLED FOR. WITHOUT FURTHER PREJUDICE TO THE ABOVE: 3.1 THE LD. CIT(A) ERRED IN NOT CONDONING THE DELAY IN FILING THE APPEAL ON THE GROUND THAT THE APPLICATION FOR COND ONATION OF DELAY WAS NOT SIGNED PROPERLY. 3.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH ACTION WAS CALLED FOR. 3. THE APPELLANT/ASSESSEE AT THE OUTSET SUBMITTED THAT THE IMPUGNED ORDER IS BAD IN LAW, AS THE SAME HAS BEEN PASSED IN VIOLATIO N OF PRINCIPLE OF NATURAL JUSTICE. THE ASSESSEE WAS NOT AFFORDED REASONABLE O PPORTUNITY OF BEING HEARD. SECONDLY, THE LD. CIT(A) HAS WRONGLY DISMISSED THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL ON THE GROUND THAT TH E APPLICATION WAS NOT SIGNED PROPERLY. HENCE THE ORDER IS LIABLE TO BE SET ASIDE . 3 ITA NO 1389/MUM/2014 ASSESSMENT YEAR: 2009-10 4. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESE NTATIVE (DR) RELYING ON THE FINDINGS OF THE LD. CIT(A) SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEAR ON THE DATE OF HEARING DESPITE SERVICE OF NOTICE AND S INCE THE APPLICATION FOR CONDONATION OF DELAY IN FILING APPEAL WAS NOT PROPE RLY SIGNED BY THE ASSESSEE, THE LD. CIT(A) HAS RIGHTLY DISMISSED THE APPEAL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO G ONE THROUGH THE MATERIAL PLACED BEFORE US. WE NOTICE THAT THE APPEAL WAS FIX ED FOR HEARING ON 19.9.2013 AND THE NOTICE TO THIS EFFECT WAS ISSUED ON 05.9.20 13. THE ASSESSEE DID NOT APPEAR ON THE SAID DATE DESPITE THE SERVICE OF NOTI CE. THE APPEAL WAS ADJOURNED TO 18.11.2013 AND NOTICE WAS ACCORDINGLY SERVED UPO N THE ASSESSEE. ON THE SAID DATE AN APPLICATION WAS FILED ON BEHALF OF THE ASSESSEE FOR ADJOURNMENT. AS PER THE LD. CIT(A), THE APPLICATION WAS NEITHER SIG NED BY THE ASSESSEE NOR ANY AUTHORITY LETTER WAS ENCLOSED THEREWITH TO JUSTIFY THE ACTION. THE APPELLANT WAS HOWEVER, GIVEN ANOTHER OPPORTUNITY TO APPEAR ON 6.1 2.2013 BUT THE ASSESSEE AGAIN DID NOT APPEAR ON THE SAID DATE OF HEARING. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE HOLDING AS UNDER :- IN VIEW OF THE FOREGOING DISCUSSION, I HOLD THAT A PPEAL FORM NO 35, HAS NOT BEEN SIGNED AND CERTIFIED BY THE APPELLANT AND THE APPLICATION FOR CONDONATION OF DELAY HAS ALSO NOT B EEN SIGNED BY THE APPELLANT. THE APPEAL THEREFORE, NOT BEING IN PROPE R FORM AND ORDER IS NOT ADMITTED HENCE, DISMISSED. 6. SO, THE LD. CIT(A) APPEAL HAS DISMISSED THE APP EAL ON TECHNICAL GROUND THAT THE APPEAL MEMO AND APPLICATION FOR CONDONATIO N OF DELAY HAD NOT BEEN SIGNED BY THE APPELLANT, WITHOUT GOING INTO THE MER IT OF THE CASE. ALTHOUGH THE FACTS ON RECORD SUGGEST THAT THE ASSESSEE FAILED TO APPEAR BEFORE THE 1 ST APPELLATE AUTHORITIES I.E. ON 6.9.2013 AND 6.12.201 3, WHEN THE CASE WAS FIXED 4 ITA NO 1389/MUM/2014 ASSESSMENT YEAR: 2009-10 FOR HEARING, YET IN OUR CONSIDERED VIEW IT IS NOT I N THE INTEREST OF JUSTICE TO DECIDE THE APPEAL ON TECHNICAL GROUNDS IGNORING THE MERIT OF THE CASE. HENCE, THE ASSESSEE SHOULD GET AN OPPORTUNITY TO PRESENT H IS CASE BEFORE THE FIRST APPELLATE AUTHORITY. WE, THEREFORE, ALLOW THE FIRST GROUND OF APPEAL OF THE ASSESSEE IN THE INTEREST OF JUSTICE AND WITHOUT DEC IDING THE APPEAL ON MERIT, REMAND THIS APPEAL TO THE LD. CIT(A) FOR ADJUDICATI NG THE SAME AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE APPELLANT/ASSESSEE. THE APPEAL IS DISPOSED OF ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL FOR THE ASS ESSMENT YEAR 2009-10 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:31/10/2016 5 ITA NO 1389/MUM/2014 ASSESSMENT YEAR: 2009-10 / 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 PRAMILA