BOMBAY BUILDERS, MUMBAI V. ACIT CIR 12(3), MUMBAI

ITA 1633/MUM/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2706 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY SRIVASTAV
• Assessee Lawyers: CHOKSHI
• Keywords: Opportunity of being heard
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI R S PADVEKAR, JUDICIAL MEMBER ITA NO 1633/MUM/2009 (ASSESSMENT YEAR: 2005-06) M/S BOMBAY BUILDERS, 911, RAHEJA CHAMBERS, NARIMAN POINT, MUMBAI -400 020 PAN: AAAFB 2512 J VS ACIT, CIRCLE 12(3), ROOM NO.121, AAYAKAR BHAVAN, M K ROAD, MUMBAI -400 020 APPELLANT RESPONDENT APPELLANT BY: SHRI CHOKSHI RESPONDENT BY: SHRI AJAY SRIVASTAV ORDER PER PRAMOD KUMAR 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CHALLENG ED EX-PARTE ORDER DATED 8TH DECEMBER 2008, PASSED BY THE CIT (A) FOR THE ASSESS MENT YEAR 2005-06, ON THE FOLLOWING GROUNDS :- 1. THE LEARNED CIT (A)S ORDER U/S 143(3) IS BAD I N LAW AS IT IS PASSED WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS THE ORDER IS BAD IN LAW IT NEEDS TO QUASHED. 2. THE LEARNED CIT (A) HAS ERRED IN TREATING INCOME FROM RENT OF RS 17,67,048/- AS INCOME FROM HOUSE PROPERTY IN PLACE OF INCOME FROM BUSINESS OF RS 336147 AS OFFERED BY THE ASSESSEE. AS THE SAME IS CORRECTLY CLAIMED BY THE ASSESSEE THE SAME NEEDS TO BE ALLOWED AS CLAIMED BY THE ASSESSEE. 3. THE LEARNED CIT (A) HAS ERRED IN NOT ALLOWING EX PENSES OF RS 14,34,170/- AS CLAIMED BY ASSESSEE IN RETURN OF INC OME. AS THE SAME IS CORRECTLY CLAIMED BY THE ASSESSEE IT SHOULD BE ALLO WED. 4. THE LEARNED CIT (A) HAS ERRED IN CONFIRMING INTE REST U/S 234B OF RS 1,54,014/- CHARGED BY ASSESSING OFFICER. AS THE INTEREST OF RS 6,067/- IS CORRECTLY ADMITTED BY THE ASSESSEE THE SAME AS CLAIMED BY THE ASSESSEE SHOULD BE ALLOWED. ITA 1633/M/2009 M/S BOMBAY BUILDERS 2 2. PARTIES ARE HEARD AND RECORDS HAVE BEEN PERUSED. 3. WE HAVE NOTED THAT THE IMPUGNED ORDER WAS PASSED EX PARTE AND THE CIT (A) DID NOT HAVE THE BENEFIT OF EXAMINING CONTENTIONS O F THE ASSESSEE. WE HAVE ALSO NOTICED THAT IT IS THE CASE OF THE ASSESSEE THAT HE DID NOT HAVE ADEQUATE OPPORTUNITY TO REPRESENT HIS CASE. IN ANY EVENT, AS ASSURED BY THE LEARNED COUNSEL FOR THE ASSESSEE, GIVEN AN OPPORTUNITY, ASSESSEE UNDERTAKES TO FULLY COOPERATE IN EXPEDITIOUS DISPOSAL OF APPEAL BEFORE CIT (A) AND NOT TO SEEK A NY ADJOURNMENTS. 4. IN VIEW OF THE ABOVE DISCUSSIONS, AND BEARING IN MIND ENTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE F ILE OF THE CIT (A) FOR ADJUDICATION DE NOVO AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE IN EXPEDITIO US DISPOSAL OF THE MATTER AND NOT TO RESORT TO ANY DELAYING TACTICS. WE ORDER SO. THE GROUNDS OF APPAL ON MERITS ARE, ACCORDINGLY, RENDERED INFRUCTUOUS. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 29TH DA Y OF DECEMBER 2009. SD/- (R S PADVEKAR) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 29TH DECEMBER 2009 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-XII, MUMBAI. 4) THE CIT - XII, MUMBAI. 5) THE D.R. B BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI ITA 1633/M/2009 M/S BOMBAY BUILDERS 3 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 29.12.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 29.12.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER