SHRI. BABULAL S JAIN, MUMBAI V. ITO WARD 19 (1)(2), MUMBAI

ITA 1684/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2302 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 20-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR , VP AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 1684 /MUM/20 19 ( / ASSESSMENT YEARS: 2013 - 14 ) SHRI BABULAL S. JAIN 2 ND FLOOR, 31 GULALWADI MUMBAI - 40004 . / VS. ITO, WARD - 19(1)(2) MATRU MANDIR TARDEO ROAD, MUMBAI - 400007 ./ ./ PAN/GIR NO. : ACVPJ8183G ( / APPELLANT ) .. ( / RESPONDENT ) / DAT E OF HEARING: 29 / 10 /2020 /DATE OF PRONOUNCEMENT: 12 /11 /2020 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16 . 01 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2013 - 1 4 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) ON TH E FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE ` LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE GROUND OF APPEAL ON THE PLEA THAT THE APPELLANT HAD FILED THE APPEAL ON THE PLEA THAT THE APPELLANT HAD FILED THE APPEAL ON THE PLEA THAT THE APPELLA NT HAD FILED THE APPEAL MANUALLY WHICH IS IN CONTRAVENTION OF RULE 45 OF INCOME TAX ACT, 1962. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE GROUND RAISED BY THE APPELLANT FOR MAKING AN AD DITION OF RS.2,58,93,218/ - BY TREATING THE CASH DEPOSIT IN BANK AS ALLEGED UNDISCLOSED INCOME, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE THE SAID GROUND OF APPEAL. ASSESSEE BY: SHRI ADITYA NEMANI REVENUE BY : SHRI V. TRIPATHI (DR) ITA NO. 1684 /M/20 19 A. Y. 2 013 - 14 2 3 . WE H AVE HEARD THE ARGUMENT S ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERS Y IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHE R HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORD ER PASSED BY THE CIT(A) DATED 16 . 01 .201 9 , WE FIND THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE/REPRESENTATIVE OF TH E ASSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE ACCORDANCE WITH LAW. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. 4 . FOR THIS P ROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 5 . ACCORDINGLY IN THE INTEREST OF JUSTICE, WE SET ASIDE THE FINDING OF THE CIT( A) ON ALL THE ISSUES AND REMIT THE ISSUE S RAISED IN THE APPEAL TO THE FILE OF THE LD. CIT(A) TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING A PROPER /REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . ITA NO. 1684 /M/20 19 A. Y. 2 013 - 14 3 6 . IN THE RESULT, THE APPEA L OF THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 12 / 11 /2020 SD/ - SD/ - ( PRAMOD KUMAR ) (AMARJIT SINGH) / VICE PRESIDENT /JUDICIAL MEMBER MUMBAI; DATED : 12 / 1 1 / 2020 VIJAY PAL SINGH/SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLAN T 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