SEEPROMED, MUMBAI V. ITO 23(1)(4), MUMBAI

ITA 2223/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8546 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 16-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2015
• Court: TRIBUNAL
• Department Lawyers: SRIDHAR E
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 2223 /MUM/20 15 (ASSESSMENT YEAR 20 09 - 10 ) SEEPROMED 16 - 17, SHIV KRUPA INDUSTRIAL ESTATE LBS MARG VIKHROLI WEST MUMBAI - 400 083. VS. ITO 23(1)(4) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . AAAFS3696L ASSESSEE BY SHRI MEHUL SHAH DEPARTMENT BY S HRI SRIDHAR E. DATE OF HEARING 6 . 2 . 201 7 DATE OF PRONOUNCEMENT 6 .2 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.10.2013 PASSED BY THE LEARNED CIT(A) - 33, MUMBAI AND IT RELATES TO A.Y. 2009 - 10. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION OF ` 18.21 LAKHS MADE BY THE A SSESSING OFFICER. 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) HAS PASSED AN EX - PARTE ORDER , SINCE THE ASSESSEE DID NOT RESPOND TO THE NOTICES ISSUED TO HIM BY POST. THEREAFTER, THE LEARNED CIT(A) ALSO SEND A NOTICE THR OUGH NOTICE SERVER , BUT T HE SAME COULD NOT ALSO BE SERVED. HENCE THE LEARNED CIT(A) HAS PASSED THE IMPUGNED ORDER EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. LEARNED AR SUBMITTED THAT THE ASSESSEE HAS CLOSED HIS BUSINESS ACTIVITY DUE TO HEAVY LOSSES AND H ENCE HE COULD NOT RECEIVE THE NOTICES ISSUED BY THE LEARNED CIT(A). HE SUBMITTED THAT T HE ASSESSEE CA ME TO KNOW ABOUT THE ORDER PASSED BY THE LEARNED CIT(A) ONLY WHEN THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS. SINCE THE LEARNED CIT(A) HAS PASSED THE ORDER WITHOUT SREEPROMED 2 HEARING THE ASSESSEE, LEARNED AR PRAYED THAT THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATING THE SAME AFRESH. 3. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS RECEIVED NOTICE ISSUED BY THE A SSESSING OFFICER DURING THE COURSE OF PENALTY PROCEEDINGS , WHICH WAS SERV ED TO THE VERY SAME ADDRESS. ACCORDINGLY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE DID NOT APPEAR BEFORE THE LEARNED CIT(A) WILLFULLY AND ACCORDINGLY OBJECTED T O THE PLEA PUT FORTH BY LEARNED AR. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE LEARNED CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT DISPOSING THE ISSUES ON MERIT. WE FURTHER NOTICED THAT THE NOTICE SERVER THROUGH W HOM NOTICE WAS ISSUED BY THE LEARNED CIT(A) ALSO COULD NOT SERVE THE NOTICE AS THE ASSESSEE WAS NOT AVAILABLE AT THE PREMISES. LEARNED AR SUBMITS THAT THE ASSESSEE HAS CLOSED DOWN THE BUSINESS DUE TO LOSS ES AND HENCE HE COULD RECEIVE THE NOTICES ISSUED BY LD CIT(A) . UNDER THESE SET OF FACTS, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE PROVIDED WITH AN OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LEARNED CIT(A). HOWEVER, FOR THE REASONS STATED BY LD D.R, WE ARE OF THE VIEW THAT THE ASS ESSEE SHOULD BE AR A COST F OR HIS FAILURE TO RECEIVE THE NOTICES AND TO APPEAR BEFORE THE LEARNED CIT(A). ACCORDINGLY, WE IMPOSE A COST OF ` 2000/ - ON THE ASSESSEE WHICH SHALL BE PAID TO THE CREDIT OF THE INCOME TAX DEPARTMENT ON OR B EFORE 28.2.2017. SUBJECT TO THE PAYMENT OF ABOVE COST, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO ADJUDICATE THE ISSUES URGED BEFORE HIM ON MERIT S . THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE LEARNED CIT(A) WITHOUT FAIL. SREEPROMED 3 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 6 . 2 .201 7. SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIA L MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 6 / 2 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUAR D FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI