HARESH K. PAREKH, MUMBAI V. ITO WD 25(1)(1), MUMBAI

ITA 2044/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0607 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2017
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR
• Assessee Lawyers: ISHWAR PRAKASH RATHI
• Keywords: Opportunity of being heard
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER ITA NO. 204 4 /MUM./2017 (ASSESSMENT YEAR: 2008 - 0 9 ) SHRI HARESH K. PAREKH A - 401, RAINBOW APARTMENT, AVDHOOT NAGAR DAHISAR (E), MUMBAI 400 068 PAN:AAJPP8526F . APPELLANT V/S ITO WD 25(1)(1) PRATYAKSHKAR BHAVAN BKC, BANDRA, MUMBAI 400 051 . RESPONDENT ASSESSEE BY : SHRI . ISHWAR PRAKASH RATHI REVENUE BY : SHRI. SUMIT KUMAR DATE OF HEARING 31.05.2017 DATE OF ORDER - 01 .0 6 .2017 O R D E R PER: SHAMIM YAHYA THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 44, MUMBAI DATED 31/01/2017 IN THE MATTER OF ORDER PASSED U/S.143(3) R.W.S. 147 OF THE IT ACT. 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD. 2. FURTHER WITHOUT PREJUDICE TO THE ABOVE, AS PER THE FACTS OF ITA NO. 2044/MUM/2017 SHRI HARESH K. PAREKH 2 THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEAL CONSIDERING THE SAME AS DELAYED FILED APPEAL, WHEREAS THE SAME HAS BEEN FILED IN TIME. 3. FURTHER WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED ASSESSING OFFICE HAS ERRED IN RE - OPENING OF ASSESSMENT U/S 147 OF THE INCOME TAX ACT. 4. FURTHER WITHOUT PREJUDICE TO THE ABOVE, AS PER THE FACTS OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN N OT DECIDING THE GROUND OF APPEALS AGAINST ADDITIONS OF RS. 3,34,150/ - AS INCOME FROM OTHER SOURCES AND THE ADDITIONS OF RS. 16,708/ - U/S 69C OF THE INCOME TAX ACT. 3. AT THE OUTSET, IT IS NOTED THAT THE CIT(A) IN THIS CASE HAS NOT PASSED AN ORDER ON MERITS BUT HAS DISMISSED THE APPEAL FOR NON - PROSECUTION. I FIND THAT IT IS INCUMBENT UPON THE LEARNED CIT(A) TO PASS AN ORDER ON MERITS OF THE CASE AND NOT DISMISS THE APPEAL FOR NON - PROSECUTION. THIS PROPOSITION IS SUPPORTED BY THE FOLLOWING CASE LAWS: - 1. CIT VS. P.A. LUTHRA HUF 240 TAXMAN 133 (BOM.) 2. CIT VS. S. CHENNIAPPA MUDALIAR 74 ITR 41 (SC) 4. IN THE LIGHT OF THE AFORESAID DISCUSSION AND PRECEDENT, I SET ASIDE THE ISSUE TO THE FILE OF LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSIDER THE ISSUE ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. ITA NO. 2044/MUM/2017 SHRI HARESH K. PAREKH 3 5. LEARNED COUNSEL OF THE ASSESSEE HAS AGREED TO SUO - MOTO APPEAR BEFORE THE LEARNED CIT(A) WITHIN TWO MONTHS OF THIS ORDER TO CANVASS THE APPEAL. 6. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1 .0 6 .2017 S D / - SHAMIM YAHYA ACCOUNTANT MEMBER MUMBAI, DATED: 0 1 .0 6 .2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE. BY ORDER KARUNA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI