RATAN P. JAIN, MUMBAI V. ITO WD 14(1)(1), MUMBAI

ITA 1837/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3156 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMCHANDRAN
• Keywords: Unexplained investment; Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 1837/MUM/2013 ASSESSMENT YEAR: 2009-10 RATAN P. JAIN., 1601/1501, CHAITYA TOWER, SHIVDAS CHAPSI ROAD, MAZGAON, MUMBAI- 400 010. PAN:- AFIPJ0277P VS. THE ITO WD. 14(1)(1), EARNEST HOUSE, MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. K. GOPAL. RESPONDENT BY : SHRI. A. RAMCHANDRAN. DATE OF HEARING: 19/08 /2016 DATE OF PRONOUNCEMENT: 24/08/20 16 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST ORDER DATED 31/03/2013 PASSED BY THE LD. CIT(APPEALS)-25 MUMBAI FOR THE ASST. YEAR 2009-10, WHEREBY THE LD. CIT(A) HAS UPHELD THE FIND ING OF THE A.O AND DISMISSED THE ASSESSEES APPEAL. 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER P ASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL :- 1. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED CIT(A) HAS ERRED IN PASSING AN EX-PARTE APP EAL ORDER WITHOUT GIVING THE APPELLANT PROPER OPPORTUNITY OF BEING HEARD. 2 ITA NO 1837/MUM/2013 ASSESSMENT YEAR: 2009-10 2. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED CIT(A) HAS FURTHER ERRED IN UPHOLDING THE D ISALLOWANCE MADE BY THE ASSESSING OFFICER (LD. A.O.) THEREBY IN CREASING THE RETURNED INCOME FROM RS. 2,02,230/- TO RS. 31,42,23 0/-. 3. THE LD. CIT(A) HAS ALSO ERRED IN UPHOLDING THE D ECISION OF THE LD. A.O. OF CONSIDERING THE CASH DEPOSIT OF RS. 29,40, 000/- AS UNEXPLAINED INVESTMENT UNDER SECTION 69. 3. AT THE VERY OUTSET THE LD. AUTHORISED REPRESENTA TIVE (AR) OF THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER HAS BEEN PASSED EX PARTE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD OF THE APPELLANT/ASSESSE E, THEREFORE, THE IMPUGNED ORDER MAY BE SET ASIDE AND THE DISALLOWANCE OF THE DEPRECIATION CONFIRMED BY THE CIT(A) MAY BE DELETED, OR IN ALTERNATIVE, THE F ILE MAY BE REMANDED BACK TO THE LD. CIT(A) FOR DECIDING THE APPEAL AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ON THE OTHER HAND SUBMITTED THAT SINCE THE ASSESSEE/APPELLANT DID NOT APPEAR BEFORE THE LD. CIT(A) DESPITE THE SERVICES OF NOTICES THROUGH REGD. POST, HE IS STOPP ED FROM RAISING THE PLEA THAT OPPORTUNITY OF BEING HEARD WAS NOT AFFORDED TO HIM TO PURSUE HIS CASE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE DOCUMENTS ON RECORD. ALTHOUGH THE LD. CIT(A) HAS MENTIONED THE D ATED ON WHICH NOTICES TO THE ASSESSEE WERE SENT THROUGH REGISTERED SPEED POS T. BEFORE PROCEEDING EX PARTE , THE LD.CIT(A) HAS RECORDED HIS SATISFACTION TO TH E EFFECT THAT THE ASSESSEE DOES NOT WANT TO PURSUE HIS CASE. YET, IN OUR CONSI DERED VIEW, SINCE THE FIRST APPELLATE AUTHORITY HAS NOT DECIDED THE CASE ON MER ITS, IN THE INTEREST OF JUSTICE AND FAIR PLAY, HE SHOULD GET AN OPPORTUNITY TO PRES ENT HIS CASE BEFORE THE FIRST 3 ITA NO 1837/MUM/2013 ASSESSMENT YEAR: 2009-10 APPELLATE AUTHORITY. WE, THEREFORE, SET ASIDE THE EX PARTE ORDER AND RESTORE THE SAME TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, A FTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT APPEAL FILED BY THE ASSESSEE FOR T HE A.Y. 2009-10 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH AUGUST, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 24/08/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 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 PRAMILA