ABHISHEK ENTERPRISES, NAVI MUMBAI V. ITO 15(3)(4), MUMBAI

ITA 1613/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1759 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 01-04-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 09-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKRAM GAUR
• Assessee Lawyers: SUBODH L RATNAPARKHI
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI B. RAMAKOT AIAH,(AM) ITA NO.1613/MUM/2009 ASSESSMENT YEAR : 2006-07 ABHISHEK ENTERPRISES 66, MAHAVIR CENTRE PLOT NO.77, SECTOR-17 VASHI NAVI MUMBAI-400 703. ..( APPELLANT ) P.A. NO. (AAJFA 8641 E) VS. INCOME TAX OFFICER-15(3)(4) MATRUMANDIR GRANT ROAD MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI SUBODH L. RATNAPARKHI RESPONDENT BY : SHRI V IKRAM GAUR O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 16.12.2008 PASSED BY THE LD. CIT(A) FOR THE ASSESSM ENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT ASSESS EE FIRM IS ENGAGED IN THE BUSINESS OF BUILDING AND DEVELOPING OF PROPERTY. T HE RETURN WAS FILED DECLARING TOTAL INCOME OF RS.NIL AFTER CLAIMING DEDUCTION U/S.80-IB (10) OF THE IT ACT, 1961, (THE ACT) AMOUNTING TO RS.28,58,64,671/-. HOWEVER, THE ASSESS MENT WAS COMPLETED AT AN INCOME OF RS.10,01,77,330/- INCLUDING THE DISALLOWA NCE OF DEDUCTION U/S.80-IB(10) AND ADDITION OF INTEREST INCOME, VIDE ORDER DATED 16.3.2007 PASSED U/S.143(3) OF THE ACT. ON APPEAL, THE LD. CIT(A) PROVIDED VARIOU S OPPORTUNITIES TO THE ASSESSEE . HOWEVER, IN THE ABSENCE OF COMPLIANCE BY THE ASSESS EE ON THE LAST DATE OF HEARING, ITA NO.1613/M/09 A.Y:06-07 2 THE LD. CIT(A) AFTER CONSIDERING THE MATERIAL AVAIL ABLE ON RECORD PASSED EXPARTE ORDER AND DISMISSED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE DISALL OWANCE OF DEDUCTION U/S.80-IB(10), ADDITION OF INTEREST INCOME AND VALIDITY OF THE EXPARTE ORDER PASSED BY THE LD. CIT(A). 4. THE ASSESSEE VIDE APPLICATION DATED 2.6.2010 SE EKS ADJOURNMENT WHICH AT THE TIME OF HEARING WAS NOT PRESSED BY THE REPRESEN TATIVE ON THE GROUND THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED BACK TO THE FILE OF THE LD. CIT(A). 5. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) SUBMITS THAT HE HAS NO O BJECTION IF THE MATTER IS SENT BACK TO THE FILE OF THE LD. CIT(A). 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE NON C OMPLIANCE OF LAST DATE OF HEARING FIXED ON 16.12.2008 BEFORE THE LD. CIT(A) WAS CONTE NDED BY THE ASSESSEE IN GROUND NO.3 AS UNDER : THE LD. CIT(A) WAS NOT JUSTIFIED IN PASSING AN EX-PAR TE APPELLATE ORDER AND THAT TOO, ON THE VERY DAY OF T HE HEARING ITSELF. THE LETTER FOR THE LAST HEARING FIXED ON 16 TH DECEMBER, 2008 WAS SENT TO THE OLD ADDRESS AND THEREFORE, THE SAME HAD BEEN RE TURNED UNSERVED. THE SAID DATE OF HEARING, I.E. 16 TH DECEMBER, 2008 HAD NOT BEEN INTIMATED TO THE CHARTERED ACCOUNTANT AND THE LD . CIT(A) HAS ERRED IN STARTING TO THE CONTRARY. HE HAS ALSO ERRED I N STATING THAT ON EARLIER OCCASIONS, NONE HAD ATTENDED FROM THE APPELLAN TS SIDE. THE CHARTERED ACCOUNTANT HAD APPEARED ON SEVERAL DATES OF HEARING. IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON R ECORD BY THE REVENUE AND KEEPING IN VIEW THE INTEREST OF JUSTICE WE CONSIDER IT FAIR AND REASONABLE THAT ONE MORE OPPORTUNITY BE PROVIDED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD . CIT(A) AND SEND BACK THE MATTER TO HIS FILE WHO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER ITA NO.1613/M/09 A.Y:06-07 3 PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT ASSESSEE'S APPEAL STANDS PARTLY AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.6.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.6.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.