JAY BUILDERS, MUMBAI V. ACIT 25(2), MUMBAI

ITA 2018/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1422 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI AMARJEET SINGH, JUDICIAL MEMBER ITA NO.2018/M/2017 ASSESSMENT YEAR: 2012-13 M/S. JAY BUILDERS, B-4, KAMDAR SHOPPING CENTRE, TEJOAL RD., VILE PARLE (E), MUMBAI 400 057 PAN: AAEFJ7601C VS. ACIT 25(2), MUMBAI - 400021 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI DEVENDRA JAIN, A.R. REVENUE BY : SHRI RAJEEV GUBEGOTRA, D.R. DATE OF HEARING : 04.10.2018 DATE OF PRONOUNCEMENT : 14.11.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 05.05.2015 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2012-13. 2. THE ISSUE RAISED IN FIRST GROUND OF APPEAL IS AG AINST THE EX- PARTE ORDER PASSED BY LD. CIT(A) IN VIOLATION OF PR INCIPLE OF NATURAL JUSTICE WITHOUT HEARING THE ASSESSEE. THE LD. A.R., AT THE OUTSET, POINTED OUT THAT THE ORDER OF LD. CIT(A ) WAS PASSED EX-PARTE WITHOUT AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD, THOUGH CANDIDLY ADMITTIN G THAT THE ASSESSEE WAS GRANTED FOUR OPPORTUNITIES BY LD. CIT( A) BUT THE ITA NO.2018/M/2017 M/S. JAY BUILDERS 2 LD. COUNSEL DID NOT APPEAR AND KEPT FILING THE ADJO URNMENT LETTERS ON EVERY DATE OF HEARING. THE LD. A.R. SUB MITTED THAT BY PASSING THE EX-PARTE ORDER THE ASSESSEE HAS BEEN DE PRIVED OF HIS LEGITIMATE AND LEGAL RIGHT OF BEING HEARD BY THE LD . CIT(A) ON MERITS AND THEREFORE THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR PASSING A FRESH ORDER AF TER AFFORDING A REASONABLE TO THE ASSESSEE TO PRESENT ITS CASE. TH E LD. A.R. IN DEFENCE OF HIS ARGUMENTS RELIED ON THE VARIOUS DECI SIONS OF THE HONBLE SUPREME COURT. 3. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D TO THE RESTORATION OF THE APPEAL ON THE GROUND THAT ASSESS EE WAS AFFORDED OPPORTUNITIES OF HEARING FOUR TIMES BUT NE ITHER ASSESSEE NOR ANY REPRESENTATIVE WAS PRESENT BUT CHOSE TO FIL E THE ADJOURNMENT PETITIONS EVERY TIME. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE APPEAL IS DECIDED EX -PARTE BY THE LD. CIT(A). THE RIGHT TO BE HEARD IS A BASIC RIGHT OF THE ASSESSEE IN ANY OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LOWER AUTHORITIES CHALLENGING THE INJUSTICE PERPETR ATED THE LOWER AUTHORITIES. MERELY BECAUSE THE COUNSEL OF THE ASS ESSEE DEFAULTED IN APPEARING BEFORE THE APPELLATE AUTHORI TY SHOULD NOT DEPRIVE THE ASSESSEE FROM HIS PRIMARY RIGHT WHICH I S GIVEN IN THE FORM OF PRINCIPLE OF NATURAL JUSTICE. ACCORDINGLY, WE RESTORE THE ISSUE BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY AS PER FACTS AND LAW. ITA NO.2018/M/2017 M/S. JAY BUILDERS 3 5. SINCE WE HAVE RESTORED THE ISSUE TO THE FILE OF LD. CIT(A) THE OTHER ISSUE RAISED BY THE ASSESSEE ON MERITS NEED N O ADJUDICATION AT THIS STAGE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.11.2018. SD/- SD/- ( AMARJEET SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 14.11.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.