M/S. NEW ENGG CENTRE, MUMBAI V. INCOME TAX OFFICER-21(3)(4), MUMBAI

ITA 1639/MUM/2008

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0504 (ITAT-MUMBAI)
• Duration Of Justice: 9 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-04-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 05-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI P K BANSAL, VP & SHRI PAWAN SINGH, JM ITA NO. 1639/MUM/2008 FOR A.Y. 2000-01 ITA NO. 1640/MUM/2008 FOR A.Y. 2000-01 ITA NO. 1641/MUM/2008 FOR A.Y. 2001-02 ITA NO. 1642/MUM/2008 FOR A.Y. 2001-02 NEW ENGG CENTRE, C/O JAYACHANDRAN NADAR, SHOP NO.12, GOPAL SHARMA ESTATE SAKI NAKA PIPELINE, MOHALI VILLAGE OPP SAKI NAKA POST OFFICE ANDHERI, MUMBAI- 400 072 PAN : AAAFN2058D VS. ITO 21(3)(4) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAKASH PANDIT RESPONDENT BY : SHRI V K AGARWAL DATE OF HEARING : 29 .0 5 .2017 DATE OF PRONOUNCEMENT : 30 .0 5 .2017 O R D E R PER P K BANSAL, VICE-PRESIDENT: ALL THESE APPEALS FILED BY THE ASSESSEE AGAINST R ESPECTIVE ORDERS OF THE CIT(A) ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. ITA NO. 1640 & 1642/MUM/2008 RELATE TO THE MERIT OF THE CASE WHILE THE APPEAL IN ITA NOS. 1639 & 1641/MUM/2008 RELATE TO THE LEVY OF PENALTY U/S.271B OF THE ACT. ITA NOS.1639 TO 1642/MUM/2008 NEW ENGG CENTRE 2 3. IN ALL THESE APPEALS, THE ASSESSEE HAS TAKEN COM MON GROUNDS BEING GROUND NOS. 2 & 3 IN ITA NO. 1640 & 1642/MUM/2008 & GROUND NOS. 1 & 2 IN ITA NOS. 1639 & 1641/MUM/2008. THESE GROUNDS READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) HAS ERRED IN LAW AND IN FACTS IN NOT COMPLYING WITH THE PRINC IPLES OF NATURAL JUSTICE. THE ORDER PASSED THEREFORE IS INVALID AND INCORRECT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE ASSES SING OFFICE HAD PASSED THE ORDER WITHOUT COMPLYING WITH THE PRINCIP LES OF NATURAL JUSTICE. 4. ON THE BASIS OF THESE GROUNDS, THE LEARNED AR VE HEMENTLY CONTENDED BEFORE US THAT THE CIT(A) HAS PASSED EX-PARTE ORDER . THE NOTICE FOR THE FIXATION OF THE APPEAL COULD NOT BE SERVED ON THE A SSESSEE AND THE FACT REMAINS THAT THE CIT(A) HAD PASSED THE ORDER WITHOU T GIVING EFFECTIVE HEARING TO THE ASSESSEE. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE CIT(A) AND VEHEMENTLY CONTENDED THAT THE CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE BY SENDING NOTICE THROUGH POST AND THR OUGH THE INSPECTOR EVEN THOUGH THE ASSESSEE WAS NOT AVAILABLE AND, THEREFOR E, ULTIMATELY NOTICE FOR HEARING WAS SERVED BY AFFIXTURE OF NOTICE IN FRONT PORTION OF THE SHOP. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT FROM THE FACTS AS STATED BY THE CIT(A) IN PARA 2 OF ITS ORDE R, COMMON IN RESPECT OF ALL ITA NOS.1639 TO 1642/MUM/2008 NEW ENGG CENTRE 3 THESE FOUR APPEALS, THAT THE CIT(A) HAD FIXED THE H EARING INITIALLY ON 03.09.2004 BY SENDING NOTICES DATED 09.08.2004. TH ESE NOTICES WERE SERVED BY SPEED POST ON 23.08.2004. BUT ON THE DATE OF HE ARING, A PARTNER MOVED AN APPLICATION FOR ADJOURNMENT STATING THAT HE WAS SUFFERING FROM APPENDICITIS AND ADMITTED IN LILAVATI HOSPITAL, THEREFORE, THE C IT(A) ADJOURNED THE CASE TO 11.10.2004. BUT ON THAT DATE THERE WAS NO ATTENDAN CE. THEREAFTER, THE CASE WAS FIXED FROM TIME TO TIME AND ULTIMATELY THE NOTI CE WAS SENT THROUGH AN INSPECTOR, WHO AFFIXED THE NOTICE ON 13.12.2004 ON THE FRONT PORTION OF THE SHOP. HOWEVER, THERE BEING NO COMPLIANCE, THE CIT( A) DISPOSED OF THE APPEALS EXPARTE. THE FACTS REMAIN THAT THE ASSESSE E WAS NEVER HEARD AND NOTICE ALSO COULD NOT BE SERVED ON THE ASSESSEE AS THE ASSESSEE WAS NOT AVAILABLE. AS PER THE PROVISION OF SECTION 250(2), THE ASSESSEE HAS A RIGHT TO BE HEARD EITHER IN PERSON OR THROUGH HIS REPRESENTA TIVE. FROM THE FACTS AND THE ORDERS OF THE CIT(A), IT IS APPARENT THAT IN TH E ABSENCE OF SERVICE OF NOTICE, THE ASSESSEE COULD NOT BE HEARD AND THE CIT (A) PASSED AN EXPARTE ORDER. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDERS OF THE CIT(A) AND RES TORE ALL THE APPEALS TO THE FILE OF THE CIT(A) WITH A DIRECTION TO RE-ADJUDICAT E ALL THESE APPEALS AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO T HE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO REPRESENT ITS CASE BEFORE THE C IT(A) AND PRODUCE ALL THE DOCUMENTS AND EVIDENCES ON WHICH HE RELY. ITA NOS.1639 TO 1642/MUM/2008 NEW ENGG CENTRE 4 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF MAY, 2017. SD/- SD/- (PAWAN SINGH) (P K BANSAL) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI; DATED: 30 TH MAY, 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI 4. THE CIT 5. DR, E BENCH, ITAT, MUMBAI BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI