CHIRAG J. MEHTA, MUMBAI V. ITO 19(2)(1), MUMBAI

ITA 1800/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8953 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 27-03-2015
• Court: TRIBUNAL
• Department Lawyers: SANJAY BAHADUR
• Keywords: Opportunity of being heard; Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI , JM ITA NO. 1800 / MUM/20 1 5 ( ASSESSMENT YEAR : 2010 - 11 ) SHRI CHIRAG J MEHTA 103 - A, NADIA APARTMENT 10 TH ROAD, TPS - III, SANTACRUZ (E), MUMBAI - 40005 5 VS. ITO - 19(2)(1), MUMBAI PAN/GIR NO. AGKPM6888Q APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI SHASHANK DUNDU REVENUE BY SHRI SANJAY BAHADUR DATE OF HEARING 09 / 01 /201 7 DATE OF PRONOUNCEME NT 11 / 01 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE EX - PARTE ORDER OF CIT(A) DATED 16/02/2015 FOR THE ASSESSMENT YEAR 2010 - 11, IN THE MATTER OF PENALTY IMPOSED U/S.271 (1)(C) OF THE IT ACT. 2. IT WAS VEHEMENTLY ARG UED BY LEARNED AR SHRI SHASHANK DUNDU THAT SUFFICIENT AND REASONABLE OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE BY CIT(A) AND ASSESSEE WAS DEPRIVED OF AN OPPORTUNITY OF BEING HEARD BY IGNORING THE FACT THAT AUTHORIZED REPRESENTATIVE ON THE DATE GIVEN BY C IT(A) HAD APPLIED FOR AN ADJOURNMENT. UNDER THESE FACTS AND CIRCUMSTANCES IT WAS ARGUED THAT CIT(A) WAS NOT JUSTIFIED IN PASSING EX - PARTE ORDER. ITA NO. 1800/MUM/2015 SHRI CHIRAG J MEHTA 2 3. OUR ATTENTION WAS ALSO INVITED TO THE AFFIDAVIT FILED BY THE ASSESSEE TO SUBSTANTIATE ITS CONTENTION FOR NOT APPEARING BEFORE THE CIT(A) ON THE DATE FIXED FOR HEARING WHICH READS AS UNDER: - I CHIRAG J MEHTA AGED ABOUT 36 YEARS AN ADULT INDIAN INHABITANT, RESIDING AT 103/A, N ADIA APARTMENT, 10 TH ROAD, SANTACRUZ(E), MUMBAI - 400055 DO HERE BY STATE ON SOLEMNLY AFFI RMATION AS UNDER: 1. I SAY THAT I AM PROPRIETOR OF NAVPAD CHEMICALS AND MY PAN NO IS AGKPM6888Q. 2. I SAY THAT, I HAD FILED APPEAL BEFORE CIT(A) - 34 ON 111112014 AGAINST PENALTY ORDER ULS 271(1)(C) DTD 30/9/2013 FOR AY 2010 - 2011 3. I SAY THAT I HAD APPOINTED CA ASHWIN JAIN AND M.L.SHARMA & CO TO REPRESENT MY CASE BEFORE CIT(A). 4. I SAY THAT I HAD RECEIVED NOTICE OF HEARING DTD 30.10.2014 FIXING DATE OF HEARING ON 24.11.2014 ON 5.11.2014. 5. I SAY THAT ON 24.11.2014 SHRI S.M.BANDI, PARTNER OF M.L .SHARMA & CO HAD FILED ADJOURNMENT LETTER ON SAID DATE. 6. I SAY THAT I HAD RECEIVED NOTICE OF HEARING DTD 11.12.2014 FIXING DATE OF HEARING ON 22.12.2014 ON 12.12.2014. 7. I SAY THAT ON 22.12.2014 SHRI S.M.BANDI, PARTNER OF M.L.SHARMA & CO HAD FILED AD JOURNMENT LETTER ON SAID DATE. 8. I SAY THAT I HAD RECEIVED NOTICE OF HEARING DTD 6/2/2015 FIXING DATE OF HEARING ON 13.12.2015 ON 10.12.2015 STATING FINAL OPPORTUNITY . 9. I SAY THAT ON 13.2.2015 SHRI V.J.BAJAJ, PARTNER OF M.L.SHARMA & CO HAD FILED ADJOU RNMENT LETTER ON THE GROUND THAT SHRI S.M.BANDI WAS OUT OF MUMBAI AND RETURNING ON 16.2.2015. I SAY THAT IT WAS FURTHER STATED THAT AS CA ASHWIN JAIN WAS ON LEAVE FOR HIS MARRIAGE, THE MATTER MAY BE ADJOURNED TO 28.2.2015. 10. I SAY THAT I WAS UNDER A BO NAFIDE BELIEF THAT THE APPEAL WAS ADJOURNED. I SAY THAT THE LD CIT(A) NEVER COMMUNICATED TO ME THAT THE LETTER OF AUTHORITY WAS NOT FILED. ITA NO. 1800/MUM/2015 SHRI CHIRAG J MEHTA 3 11. I SAY THAT I RECEIVED EX - PARTE ORDER OF CIT(A) DTD 16.2.2015 ON 7.3.2015 12. I SAY THAT I IMMEDIATELY APPROAC HED THE HON'BLE ITAT AND FILED APPEAL ON 27.3.2015. I SAY THAT I AM READY AND WILLING TO PURSUE MY MATTER AND ONE MORE OPPORTUNITY MAY BE AFFORDED TO ME. 13. I SAY THAT THE ABOVE STATED FACTS ARE TRUE AND CORRECT TO BEST OF MY OWN KNOWLEDGE AND I AM MAKI NG THIS AFFIDAVIT TO BRING THE TRUE FACTS ON RECORD. 4. WITH REGARD TO THE MERIT OF PENALTY SO IMPOSED, CONTENTION OF MR. DUNDU WAS THAT AO HAS ACCEPTED THE SALE MADE BY ASSESSEE BUT THE CORRESPONDING PURCHASES WERE NOT ACCEPTED. AS PER LEARNED AR , THERE IS A QUANTITATIVE TALLY OF PURCHASES AND SALES AND MERELY BECAUSE BILLS WERE TAKEN FROM DIFFERENT SUPPLIER, THE PURCHASES SO MADE CANNOT BE TREATED AS BOGUS . ACCORDINGLY, IMPOSITION OF PENALTY WITH REFERENCE TO REJECTING THE PURCHASES WAS NOT JUSTIFIED. L EARNED AR ALSO INVITED OUR ATTENTION TO THE PROFIT RATE DECLARED BY THE ASSESSEE SO AS TO SUBSTANTIATE THAT ASSESSEE HAS NEITHER CONCEALED NOR FURNISHED ANY PARTICULARS OF INCOME. 5. ON THE OTHER HAND LEARNED CIT DR RELIED ON THE ORDER OF THE LOWER AUTHORI TIES. 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND FROM RECORD THAT PENALTY WAS IMPOSED WITH RESPECT TO THE PURCHASES NOT ACCEPTED BY THE AO AS GENUINE. THE ASSESSEE FILED APPEAL AGAINST T HE PENALTY ORDER ON 01/11/2013, WE LL WITHIN THE STATUTORY TIME LIMIT. WE FOUND THAT ASSESSEE HAS APPOINTED SHRI ASHWIN JAIN CA AND MR. M.L.SHARMA & CO TO REPRESENT HIS CASE BEFORE THE CIT(A) . ITA NO. 1800/MUM/2015 SHRI CHIRAG J MEHTA 4 7. LEARNED AR HAS APPLIED FOR ADJOURNMENT BEFORE THE CIT(A) ON 2 4/11/2014 . ON THE FURTHER DATE SO GIVEN I.E., ON 13/02/2015, SHRI V.J.BAJAJ, PARTNER OF SHRI M.L.SHARMA & CO., HAD FILED ADJOURNMENT LETTER ON THE GROUND THAT SHRI S.M.BANDI WAS OUT OF MUMBAI AND RETURNING ON 16/02/2015. IT WAS ALSO SUBMITTED THAT SHRI ASH WIN JAIN WAS ON LEAVE FOR HIS MARRIAGE THEREFORE, REQUEST WAS MADE FOR ADJOURNING THE CASE TO 28/02/2015. AFTER FILING ADJOURNMENT PETITION, AR OF THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT APPEAL WAS ADJOURNED. HOWEVER, NO COMMUNICATION WAS SENT REJECTIN G THE ADJOURNMENT PETITION AND THE CIT(A) HAS PASSED EX - PARTE ORDER ON 16/02/2015 WHICH WAS RECEIVED BY THE ASSESSEE ON 07/03/2015. IT IS CLEAR FROM THE AFFIDAVIT SO PLACED ON RECORD THAT ASSESSEE HAS APPLIED FOR ADJOURNMENT ON THE DATE FIXED FOR HEARING. HOWEVER, WITHOUT CONSIDERING THE ADJOURNMENT PETITION, THE CIT(A) HAS DECIDED EX - PARTE. 8 . IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE EX - PARTE ORDER OF CIT(A) AND THE MATTER IS RESTORED BACK TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 11 / 01 /2017 S D/ - ( RAM LAL NEGI ) S D/ - ( R.C.SHARMA ) JU DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 11 / 01 /201 7 KARUNA SR. PS ITA NO. 1800/MUM/2015 SHRI CHIRAG J MEHTA 5 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//