FIROZ A. RATNANI, MUMBAI V. ITO WD 15(1)(1), MUMBAI

ITA 1498/MUM/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3761 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 24-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P PEERYA
• Assessee Lawyers: J G VORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, F, MUMBAI BEFORE SHRI S V MEHROTRA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 1498/MUM/2010 (ASSESSMENT YEAR 2005-06) FIROZA, RATNANI, PROP M S AMAR SALES AND MARKETING C SHRI J C VORA (ADVOCATE) 104/108, OLIVE ROAD, 19, WATVA CHAMBERS MASJIT, MUMBAI-400009 PAN: AGIPR6784Q . APPELLANT VS INCOME TAX OFFICER WARD 15(1)(1), MUMBAI RESPONDENT APPELLANT BY : SHRI J G VORA RESPONDENT BY : SHRI P PEERYA O R D E R PER VIJAY PAL RAO,JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 03.12.2009 OF THE LEARNED CIT(A)-26 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS FOLLOWING GROUNDS IN THIS APPEA L: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) WRONGLY DISMISSED THE APPEAL FOR NONCOMPLIANCE AND NON-PROSECUTION; ITA NO. 1498/MUM/2010 (ASSESSMENT YEAR 2005-06) 2 2. WHILE DISMISSING THE APPEAL THE LEARN ED CIT(A) HAS WRONGLY ALLEGED THAT THE NOTICE FOR HEARING WAS RECEIVED BY THE AUTHORIZED PERSON SINCE THE APPELLANT HAD NOT APPOINTED ANY PERSON TO RECEIVE THE NOTICE; 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED THE CIT(A) HAS WRONGLY SUSTAINED THE ESTIMATED INCOME AT `.3,92,859/- AS AGAINST THE RETURNED INCOME OF `.1,01,850/- 3. WE HAVE HEARD THE LEARNED AR AS WELL AS THE DR AND CONSIDERED THE RELEVANT RECORD. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE DID NOT RECEIV E THE NOTICE OF HEARING SENT BY THE OFFICE OF THE CIT(A) AND THEREFORE, HE COULD NOT ATTEND THE HEARING BEFORE T HE CIT(A) ON THE DATE FIXED FOR HEARING WHEN THE APPEAL OF TH E ASSESSEE WAS DISMISSED EX-PARTE. 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THA T THE NOTICE WAS SENT BY RPAD TO THE ADDRESS OF THE ASSES SEE AND IT WAS ALSO RECEIVED BY THE AUTHORIZED PERSON OF THE A SSESSEE. ON PERUSAL OF THE IMPUGNED ORDER OF THE CIT(A), IT REVEALS THAT THE CIT(A) HAS ISSUED NOTICE FOR THE HEARING ON 02 .12.2009 AND WHEN NOBODY HAS APPEARED ON BEHALF OF THE ASSES SEE, THE ITA NO. 1498/MUM/2010 (ASSESSMENT YEAR 2005-06) 3 APPEAL WAS DISMISSED IN-LIMINE FOR NON-PROSECUTION AS WELL AS ON MERITS VIDE IMPUGNED ORDER. 5. IT IS EVIDENT FROM THE RECORD THAT THE NOTICE IS SUED BY THE CIT(A) WAS NOT RECEIVED BY THE ASSESSEE IN PERSON B UT WAS ALLEGEDLY RECEIVED BY SOME OTHER AUTHORIZED PERSON. EVEN OTHERWISE ONLY ONE OPPORTUNITY OF HEARING WAS GIV EN BY THE CIT(A) AND THE APPEAL WAS DISMISSED WITHOUT HEARING THE ASSESSEE. THEREFORE, IN OUR VIEW NO EFFECTIVE AND PROPER OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS IN THE INTERESTS OF JUSTICE, WE ARE OF THE CONSIDERED OPIN ION THAT THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF HEARIN G AND IF ONE MORE OPPORTUNITY IS GIVEN TO THE ASSESSEE NO PR EJUDICE WOULD BE CAUSED TO THE REVENUE. ACCORDINGLY, WE SE T ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER TO TH E FILE OF THE CIT(A) FOR AFFORDING ONE MORE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE AND DECIDE THE APPEAL ON MERITS AFTER HEARING AND CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. ITA NO. 1498/MUM/2010 (ASSESSMENT YEAR 2005-06) 4 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 10.11.2010 SD SD (S V MEHROTRA ) (VIJAY PAL R AO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 10 TH NOV 2010 SRL:81110 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI