DR NIRMAL JAIN, MUMBAI V. DCIT CIR 7(3), MUMBAI

ITA 2077/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75717 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP I
• Assessee Lawyers: INDIRA G ANAND
• Keywords: Salary income; Opportunity of being heard
• Section: 143(3)

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI .. , ; BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA, J M ./ I.T.A. NO.2077 /MUM/2012 ( / ASSESSMENT YEAR : 2008-2009 DR. NIRMAL JAIN, 2404 B, OBEROI WOODS, OBEROI GARDEN CITY, DHINDOSHI, GOREGAON (EAST), MUMBAI 400 063. / VS. DY. COMMISSIONER OF INCOME TAX CIRCLE - 7(3), AAYAKAR BHAVAN, MUMBAI. ./ PAN :AAOPJ1273G ( # / APPELLANT ) .. ( $%# / RESPONDENT ) A PPELLANT BY MS. INDIRA G. ANAND R E SPONDENT BY : SHRI MOURYA PRATAP I ) * / DATE OF HEARING : 04-03-2014 ) * / DATE OF PRONOUNCEMENT : 07-03-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A) 13, MUMBAI DATED 3-11-2011 WHEREBY HE DISMIS SED THE APPEAL OF THE ASSESSEE EX-PARTE FOR WANT OF PROSECUTION WITHOUT G OING INTO THE MERITS OF THE ISSUE RAISED THEREIN. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO DERIVED INCOME FROM SALARY, HOUSE PROPERTY, BUSINESS AND OTHER SOU RCES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED B Y HIM ON 31-07-2008 DECLARING TOTAL INCOME OF RS. 65,06,719/-. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE WAS CALLED UPON BY THE A.O . TO PRODUCE THE BILLS AND ITA 2077/M/12 2 OTHER NECESSARY DOCUMENTS IN SUPPORT OF THE EXPENSE S CLAIMED IN THE P&L ACCOUNT WITH RESPECT TO PROFESSIONAL INCOME. ON VER IFICATION OF THE RELEVANT DETAILS FURNISHED BY THE ASSESSEE, THE A.O. FOUND T HAT THE EXPENDITURE CLAIMED BY THE ASSESSEE WAS NOT FULLY VERIFIABLE AN D THE SAME WAS IN THE NATURE OF PERSONAL EXPENDITURE NOT SUPPORTED BY THI RD PARTY BILLS. HE, THEREFORE, DISALLOWED THE EXPENDITURE OF RS. 4,22,0 59/- CLAIMED BY THE ASSESSEE IN RESPECT OF THE PROFESSIONAL INCOME IN T HE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 VIDE AN ORDE R DATED 30-12-2010. 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) . DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THERE WAS, HOWEVER, NON- COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTIC ES ISSUED AS INDICATED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER AS UNDER:- DATE OF NOTICE DATE OF HEARING REMARKS 22/7/11 9/8/2011 9/8/2011 9/9/2011 NONE APPEARED 12/9/2011 03/11/11 NONE APPEARED 18/10/11 03/11/11 NONE APPEARED 4. KEEPING IN VIEW THE NON-COMPLIANCE OF THE ASSESS EE, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) EX-PARTE W ITHOUT REALLY GOING INTO THE MERIT OF THE ISSUE RAISED THEREIN. AGGRIEVED BY TH E ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED RELEVANT MATERIAL AVAILABLE ON RECORD. DURING THE C OURSE OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL, AFFIDAVIT OF MR. K UNAL SHAH, CA, WHO WAS AUTHORIZED TO REPRESENT THE CASE OF THE ASSESSEE BE FORE THE LD. CIT(A) HAS BEEN FILED WHEREIN THE NON-COMPLIANCE OF THE NOTICES ISS UED BY THE LD. CIT(A) IS EXPLAINED AS UNDER:- ITA 2077/M/12 3 - THAT THE OFFICE OF THE COMMISSIONER OF INCOME TA X (APPEAL) - 13 ISSUED NOTICE DATED 22 JULY, 2011 FIXING THE DATE FIXED FOR HEARING ON 0GTH AUGUST, 2011. HOWEVER THE AFORESAID NOTICE WAS NEVER RECEIVED BY THE APPELLANT AND THEREFORE APPELLANT WAS UNAWARE O F THE DATE OF HEARING BEFORE COMMISSIONER OF INCOME TAX (APPEAL) -13. - THAT THEREAFTER THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 ISSUED NOTICE DATED 16TH AUGUST, 2011 FIXING THE DATE FIXED FOR HEARING ON 09TH SEPTEMBER, 2011. THE APPE LLANT WAS OUT OF TOWN AND RETURNED HOME ONLY ON THE NIGHT OF J2TH SE PTEMBER, 2011. THE APPELLANT FORWARDED THE SAME TO HIS AUTHORISED REPRESENTATIVES ON 1 3TH SEPTEMBER, 2011. - THAT THE DEPONENT ON SEPTEMBER, 2011 ATTEMPTED TO FILE A LETTER DATED J3TH SEPTEMBER, 2011 REQUESTING TO RE-FIX THE DATE OF HEARING. HOWEVER, THE LETTER WAS NOT ACCEPTED BY THE COMMISS IONER OF INCOME TAX (APPEAL) - 13 AND THE DEPONENT WAS GIVEN TO UND ERSTAND BY THE COMMISSIONER OF INCOME TAX (APPEAL) -13S STAFF THA T THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 WOULD ISSUE A FRESH NOT ICE RE-FIXING THE DATE OF HEARING. - THAT THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 THEREAFTER ISSUED NOTICE DATED 12TH SEPTEMBER, 2011 FIXING THE DATE FOR HEARING ON 2GTH SEPTEMBER, 2011. THE APPELLANT HAS RECEIVED THE AFORESAID NOTICE ON 14TH SEPTEMBER, 2011. THE DETAI LS TO BE PRODUCED BEFORE COMMISSIONER OF INCOME TAX (APPEAL) 13 IN THE AFORESAID CASE, WERE UNDER COMPILATION AND THEREFORE, VERBAL ADJOURNMENT WAS SOUGHT ON 29TH SEPTEMBER, 2011. - THAT THE DEPONENT ATTEMPTED TO FILE THE WRITTEN SUBMISSION ALONGWITH ALL THE DETAILS ON 17TH OCTOBER, 2011, BU T SINCE THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 WAS ABSENT , THE STAFF DID NOT ACCEPT THE SAME. - THAT THE DEPONENT AGAIN ATTEMPTED TO FILE THE WRI TTEN SUBMISSION ALONGWITH ALT THE DETAILS ON 31 OCTOBER, 2011, BUT THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 WAS ABSENT AND THE STAFF D ID NOT ACCEPT THE SAME. NEITHER DID THEY COMMUNICATE THAT A FRESH NOT ICE WAS ISSUED RE- FIXING THE DATE. - THAT THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEAL) - 13 ISSUED NOTICE DATED 18 TH OCTOBER, 2011 FIXING THE DATE FOR HEARING ON 03 NOVEMBER, 2011. HOWEVER, THE APPELLANT WAS OUT OF T OWN AND FORWARDED THE AUTHORISED REPRESENTATIVE, THE COPY O F NOTICE ONLY ON 08TH NOVEMBER, 2011, ON WHICH DATE HE ACQUIRED KNOW LEDGE OF THE RECEIPT OF THE AFORESAID NOTICE DATED 18 OCTOBER, 2 011. HENCE, THE APPELLANT COULDNT APPEAR FOR THE SCHEDULED HEARING . ITA 2077/M/12 4 KEEPING IN VIEW THE ABOVE SUBMISSION MADE IN THE AF FIDAVIT BY MR. KUNAL SHAH, CA, WE ARE OF THE VIEW THAT ONE MORE OPPORTUN ITY CAN JUSTIFIABLY BE GIVEN TO THE ASSESSEE TO PUT FORTH HER CASE BEFORE THE LD. CIT(A) ON MERIT IN THE INTEREST OF JUSTICE. HOWEVER, KEEPING IN VIEW THAT NO PROPER CASE WAS MADE OUT BY THE ASSESSEE BEFORE THE LD. CIT(A) TO JUSTIF Y THE ADJOURNMENTS SOUGHT FROM TIME TO TIME BY PLACING OF THE RELEVANT FACTS ON RECORD AND THIS NEGLIGENCE AND CARELESSNESS ON THE PART OF THE ASSE SSEE HAS RESULTED IN EX- PARTE ORDER PASSED BY THE LD. CIT(A) AND FURTHER UN -NECESSARY LITIGATION, WE ARE OF THE VIEW THAT IT IS A FIT CASE TO IMPOSE COS T ON THE ASSESSEE. ACCORDINGLY, WE IMPOSE A TOTAL COST OF RS. 2000/- ( RUPEES TWO THOUSAND ONLY) ON THE ASSESSEE AND SUBJECT TO THE PAYMENT OF THE S AID COST TO THE DEPARTMENT, THE MATTER IS SENT BACK TO THE FILE OF THE LD. CIT(A) FOR DISPOSAL OF THE APPEAL OF THE ASSESSEE ON MERIT AFTER GIVING TH E ASSESSEE AN OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL COMPLY WITH THE NOTICES ISSUED BY THE LD. CIT (A) AND EXTEND ALL HIS POSSIBLE COOPERATION REQUIRED BY THE LD. CIT(A) TO DISPOSE OF THE SAID APPEAL. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 2014. . ) 0 1 0750352014 ) SD/- AS/- (VIVEK VARMA) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 1 DATED 0750352014 [ ITA 2077/M/12 5 .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. ; () / THE CIT(A)13 MUMBAI. 4. ; / CIT 7 MUMBAI 5. $? , * ? , / DR, ITAT, MUMBAI H BENCH 6. / GUARD FILE. / BY ORDER, % $ //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI