DECCAN ENTERPRIES, MUMBAI V. ITO 19(3)(1), MUMBAI

ITA 1855/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75781 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K GOPAL SHRI DEEPAK SUTARIY
• Assessee Lawyers: TELEPHONE EXP
• Keywords: Opportunity of being heard
• Section: 234B

Judgement Text

, ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , !' #$ #$ #$ #$ %$ $ , & !' ' ' ' ' BEFORE SHRI SANJAY ARORA, AM AND SRI VIJAY PAL RAO, JM ./ I.T.A. NO. 1855/MUM/2012 ( &( ) &( ) &( ) &( ) $*) $*) $*) $*) / ASSESSMENT YEAR: 2007-08 ) M/S. DECCAN ENTERPRISES, 32DECCAN COURT, 259 S.V. ROAD, BANDRA (W), MUMBAI-400050 ( ( ( ( / VS. I.T.O. 19(3)(1), IT OFFICES, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 '+ ./ PAN : AAAFD2751M ( +, / ASSESSEE ) .. ( -.+, / RESPONDENT ) ($ / 0 / DATE OF HEARING : 06/02/2014 1* / 0 / DATE OF PRONOUNCEMENT : 26/ 02/2014 !2 / O R D E R PER VIJAY PAL RAO, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19/12/11 OF CIT(A) FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS. I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD IN TH E MATTER. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL A ND THAT TOO WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS O F THE CASE. III. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE MADE OF RS.6,75,128/- AS OUT OF INTEREST PAID. IV. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE MADE OF RS.60,000/- AS OUT OF GENERAL EXP., MOTOR CAR E XP. & TELEPHONE EXP. +, / 3 / ASSESSEE BY : SHRI K. GOPAL -.+, / 3 / RESPONDENT BY : SHRI DEEPAK SUTARIYA 2 ITA NO.1855/MUM/2012 M/S.DECCAN ENTERPRISES V. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE GROUND O F APPEAL PERTAINING TO CHARGING OF INTEREST U/S 234B OF THE I.T. ACT. 2. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE LD. CIT(A) HAS PASSED THE IMPUGNED EX-PARTE AS NOBODY APPEARED ON BEHALF OF THE ASSESSEE. HE HAS POINTED OUT THAT THE ASSES SEE HAS FILED A LETTER DATED 26/11/2011 FOR SEEKING ADJOURNMENT OF THE HEA RING BEFORE THE LD. CIT(A), WHEREBY, THE ASSESSEE HAD EXPLAINED THAT T HE HUSBAND OF THE REPRESENTATIVE OF THE ASSESSEE WAS ADMITTED TO HOSP ITAL FOR SOME SERIOUS AILMENTS AND CONSEQUENTLY IT WAS NOT POSSIBLE FOR T HE REPRESENTATIVE OF THE ASSESSEE TO ATTEND THE HEARING. THE LD. AR HAS FURTHER SUBMITTED THAT ULTIMATELY ON 28/03/2013 THE HUSBAND OF THE RE PRESENTATIVE OF THE ASSESSEE DIED. HE HAS FILED A DEATH CERTIFICATE AN D MEDICAL RECORD OF THE HUSBAND OF THE ASSESSEES REPRESENTATIVE AND SUBMIT TED THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, THE REPRESENTATIVE OF TH E ASSESSEE COULD NOT ATTEND THE HEARING BEFORE THE CIT(A). ACCORDINGLY, THE LD. AR HAS PLEADED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO PRESENT ITS CASE BEFORE THE CIT(A). ON THE OTHER HAND THE LD. DR HA S SUBMITTED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED ON MERITS A ND THEREFORE NO FURTHER OPPORTUNITIES IS REQUIRED TO BE GRANTED. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS, FACTS A ND CIRCUMSTANCES OF THE CASE, WE FIND THAT THERE WAS A REASONABLE AN D SUFFICIENT CAUSE FOR NON ATTENDING HEARING BEFORE THE LD. CIT(A) ON BE HALF OF THE ASSESSEE. IT IS CLEAR FROM THE MEDICAL RECORD AND DEATH CERTIFIC ATED THAT HUSBAND OF THE ASSESSEES REPRESENTATIVE WAS HOSPITALIZED INIT IAL AND ULTIMATELY DIED DUE TO AILMENT. FURTHER, WE FIND THAT THE REPRESENT ATIVE OF THE ASSESSEE HAS REQUESTED TO THE CIT(A) VIDE LETTER DATED 26/11 /2011 FOR ADJOURNMENT OF THE HEARING ON THE GROUND OF HOSPITA LIZATION OF HER HUSBAND. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANC ES OF THE CASE AND INTEREST OF JUSTICE WE SET-ASIDE THE IMPUGNED EX-PA RTE ORDER AND GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CAS E BEFORE THE LD. CIT(A). 3 ITA NO.1855/MUM/2012 M/S.DECCAN ENTERPRISES THE MATTER IS REMANDED BACK TO THE RECORD OF THE LD . CIT(A) FOR DECIDING AFRESH AFTER HEARING THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /02/2014 . !2 / 1* 4!( 26/02/2014 , / 5 SD/- ( SANJAY ARORA ) SD/- ( VIJAY PAL RAO) !' / ACCOUNTANT MEMBER & !' / JUDICIAL MEMBER MUMBAI; 4!( /DATED : 26 /02/ 2014 F{X~{T? P.S. !2 / -&06% 7%*0 / COPY OF THE ORDER FORWARDED TO : (1) &( )80 / THE ASSESSEE; (2) '$ / THE REVENUE; (3) 9 ( ) / THE CIT(A); (4) 9 / THE CIT, MUMBAI CITY CONCERNED; (5) %$:5 -&0&( , , / THE DR, ITAT, MUMBAI; (6) 5) ; / GUARD FILE. .%0 -&0 / TRUE COPY !2( / BY ORDER < / = / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI