SANGITA SHARAD JAIN ( L/H OF LATE SHARAD DURGAPRASAD JAIN), MUMBAI V. ITO (TCH)-24, MUMBAI

ITA 2176/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78852 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 12-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Assessee Lawyers: NEHA BARVE
• Keywords: Opportunity of being heard
• Section: 263; 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEM BER . / ITA NO. 21 76 / MUM./201 2 ( / ASSESSMENT YEAR : 2007 08 ) MS. SANGITA SHARAD JAIN L/H OF LATE MR. SHARAD DURGAPRASDA JAIN 1, AZAD BUNGALOW, NADIADWALA COLONY MALAD (W), MUMBAI 400 064 .. / APP ELLANT V/S COMMISSIONER OF INCOME TAX 24 MUMBAI .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AACPJ7439E / ASSESSEE BY : MS. NEHA BARVE / REVENUE BY : MR. GIRIJA DA YAL / DATE OF HEARING 12 .0 3 .201 4 / DATE OF ORDE R 12.05.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE AFORESAID APPEAL HA S BEEN PREFERRED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER DATED 7 TH MARCH 2012 , PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT') BY THE MS. SANGITA SHARAD JAIN 2 LEARNED COMMISSIONER XXIV, MUMBAI, FOR THE ASSESSMENT YEAR 2007 08, ON THE FOLLOWING GROUNDS OF APPEAL : THE LEARNED CIT(A) ERRED IN PASSING AN EX PARTE ORDRE UNDER SECTION 263 WITHOUT GIVING THE APPELLANT A SUFFICIENT OPPORTUNITY OF BEING HEARD, ALTHOUGH MR. ARUN MANIAR, C.A. OF THE APPELLANT FILED A LETTER DATED 13 TH FEBRUARY 2012 SEEKING AN ADJOURNMENT AND WHICH WAS ACCEPTED IN TA PAL BY THE OFFICE OF THE CIT BUT NO DATE WAS GIVEN TO THE APPELLANT. THE LEARNED CIT(A) ERRED IN UPHOLDING ACTION UNDER SECTION 263 WHEN THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS NOT ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE AS ALL DETAILS WERE FURNISHED TO THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS. 2 . AT THE OUTSET, IT HAS BEEN POINTED OUT BY THE LEARNED COUNSEL THAT THE LEARNED COMMISSIONER HAS PASSED THE IMPUGNED ORDER WITHOUT GIVING PROPER AND SUFFICIENT OPPORTU NITY OF HEARING DURING THE COURSE OF THE PROCEEDING UNDER SECTION 263. THE LEARNED COUNSEL SUBMITTED THAT IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE HAD SUBMITTED A LETTER , SEEKING ADJOURNMENT AND ON SUCH AN ADJOURNMENT LETTER NO DATE WAS COMMUNICA TED. THE LEARNED COMMISSIONER , THEREAFTER, WITHOUT PROVIDING FURTHER OPPORTUNITY, PASSED AN EX PARTE ORDER HOLDING THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30 TH OCTOBER 2009, FOR THE ASSESSMENT YEAR 2007 08 IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE AND THE ASSESSMENT ORDER HAS BEEN SET ASIDE ON THE POINTS RAISED IN THE SHOW CAUSE NOTICE. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER PASSED BY TH E LEARNED COMMISSIONER . 4 . WE HA VE HEARD THE RIVAL CONTENTIONS AND ALSO PERUSED THE RELEVANT RECORD. THE ASSESSEES MAIN OBJECTION BEFORE US IS THAT THE IMPUGNED ORDER HAS BEEN PASSED EX PARTE WITHOUT GIVING REASONABLE MS. SANGITA SHARAD JAIN 3 AND SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE FOR PRESENTING ITS CASE , IN RESPONSE TO THE SHOW CAUSE NOTICE DATED 20 TH JANUARY 2012, ISSUED UNDER SECTION 263. THE ASSESSEE HAD SUBMITTED A LETTER SEEKING ADJOURNMENT BEFORE THE LEARNED COMMISSIONER ON WHICH , NO DATE OF HEARING WAS COMMUNICATED TO THE ASSESSEE BY THE O FFICE OF THE LEARNED COMMISSIONER XXIV, MUMBAI. THE LEARNED COMMISSIONER, WITHOUT GIVING FURTHER OPPORTUNITY, ON THE BASIS OF SHOW CAUSE NOTICE ITSELF , HAS SET ASIDE THE ASSESSMENT ORDER ON THE POINTS RAISED THEREIN. HENCE, IN THE INTEREST OF JUSTICE, WE FE EL THAT THIS MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER TO PASS FRESH ORDER . CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER AND RESTORE THE ENTIRE MATTER TO HIS FILE WITH A DIRECTION TO TO PRO VIDE DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE TO PRESENT ITS CASE AND THEN PASS A FRESH ORDER AFTER CONSIDERING THE ASSESSEES SUBMISSIONS AND OBJECTION ON MERITS AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 12 TH MAY 2014 ORDER PRONOUNCED IN THE OPEN COURT O N 12 TH MAY 2014 SD/ - SANJAY ARORA ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 12 TH MAY 2014 MS. SANGITA SHARAD JAIN 4 / 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 . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI