, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI ,!' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.1765/MUM/2014 ASSESSMENT YEAR: 2009-10 SHRI RAMLAL B. GADRI, 7, SHREE RAM BHAVAN, MEHTA ROAD, KHOTWADI, SANTACRUZ (W), MUMBAI-400054 / VS. ITO-19(2)(2), R. NO.309, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400012 / ASSESSEE / REVENUE P.A. NO. AAFPG9820P $%& / ASSESSEE BY NONE $%& / REVENUE BY SHRI A.K.DHONDIAL-CIT-DR / DATE OF HEARING 09/06/2015 & / DATE OF ORDER: 10/06/2015 &/ O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY IMPUGNED ORDER DATED 28/11/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI ON THE GROUND THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) PASSED THE ORDER WITHOUT PROVIDING SUFFIC IENT, PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE IGNORING THE PRINCIPLE OF NATURAL JUSTICE ALONG WITH OTHER GROUNDS. ITA NO.1765/MUM/2014 SHRI RAMLAL B. GADRI 2 2. DURING HEARING OF THIS APPEAL, NOBODY WAS PRESE NT FOR THE ASSESSEE, IN SPITE OF ISSUANCE OF REGISTERE D AD NOTICE. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PUR SUE HIS APPEAL, THEREFORE, IT CANNOT BE KEPT PENDING INDEFI NITELY. FILING OF APPEAL IS NOT ENOUGH, IT REQUIRES EFFECTI VE PROSECUTION ALSO, THEREFORE, I HAVE NO OPTION BUT T O PROCEED EX-PARTY, QUA THE ASSESSEE, AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THIS APPEAL IS ALSO TIME BARRED BY FORTY DAYS FOR FILING THE APPEA L BEFORE THIS TRIBUNAL FOR WHICH THE ASSESSEE HAS FILED APPLICATI ON FOR CONDONATION OF DELAY SUPPORTED BY AN AFFIDAVIT, STA TING REASONS THEREON OF LATE FILING. ON CONSIDERATION O F THIS APPLICATION, I AM SATISFIED THAT THERE WAS A REASON ABLE CAUSE IN NOT FILING THE APPEAL IN TIME, THEREFORE, THE DE LAY IS CONDONED. HOWEVER, THE LD. DR, SHRI A.K. DHONDIAL, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. I HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH B Y THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD . THE FACTS, IN BRIEF, ARE THAT EVEN BEFORE THE LD. COMMI SSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS TOOK THE GRO UND THAT THE ASSESSMENT WAS FRAMED WITHOUT PROVIDING SUFFICI ENT AND PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LIKEWISE, BEFORE THIS TRIBUNAL, IDENTICAL GROUND HAS BEEN RAI SED. FACTS IN BRIEF ARE THAT ORIGINAL RETURN, DECLARING INCOME OF RS.3,52,420/-, WAS FILED ON 15/09/2009 BY THE ASSES SEE. SINCE, THE RETURN WAS SELECTED FOR SCRUTINY, THEREF ORE, NOTICE U/S 143(2) WAS SERVED UPON THE ASSESSEE TO WHICH TH E ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER. TH E ITA NO.1765/MUM/2014 SHRI RAMLAL B. GADRI 3 ASSESSING OFFICER ASSESSED THE INCOME AT RS.10,23,3 87/-. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX ( APPEALS), THE ASSESSEE CHALLENGED THE DISALLOWANCE OF INTERES T EXPENSES/AD-HOC DISALLOWANCE AND ADDITION ON ACCOUN T OF TELEPHONE EXPENSES AND PETTY CASH EXPENSES. I FIND THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 28/ 12/2011. AS PER THE IMPUGNED ORDER, NONE-APPEARED ON BEHALF OF THE ASSESSEE. I FIND THAT EVEN IN THE IMPUGNED ORDER, THERE IS NO MENTION, WHETHER THE NOTICE OF HEARING WAS SERVED U PON THE ASSESSEE OR NOT. TOTALITY OF FACTS, CLEARLY INDICA TES THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE AND FAIR PLAY THAT NO PERSON SHOULD BE COND EMNED UNHEARD, I REMAND THIS APPEAL TO THE FILE OF THE LD . COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJU DICATION IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPO RTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENC E, IF ANY, IN SUPPORT OF HIS CLAIM. THUS, THE APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE ALLOWED FOR STA TISTICAL PURPOSES THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE S IDES AT THE CONCLUSION OF THE HEARING ON 09 TH JUNE 2015. SD/- (JOGINDER SINGH) !' / JUDICIAL MEMBER MUMBAI; DATED : 10/06/2015 F{X~{T? P.S / ! ITA NO.1765/MUM/2014 SHRI RAMLAL B. GADRI 4 &$)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI