SHIBSHANKAR GHOSH, THANE V. DCIT CIRCLE - 3, THANE

ITA 2228/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8885 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 02-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 06-04-2016
• Court: TRIBUNAL
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO. 2228 /MUM/20 16 (ASSESSMENT YEAR 20 09 - 10 ) MR. SHIBSHANKAR GHOSH PROP. SIDDHARTH TRADING CO. 101,VRINDAVAN INDUSTRIAL COMPLEX LBS MARG , GOKUL NAGAR THANE, PIN - 400 601. VS. DY. CIT, CIRCLE - 3 6 TH FLOOR ASHAR IT PARK ROAD NO. 16Z WAGALE IND. ESTATE THANE WEST PIN - 400 604. ( APPELLANT ) ( RESPONDENT ) PAN NO . AEDPG7709K ASSESSEE BY SHRI SUBODH RATNAPARKHI DEPARTMENT BY S HRI PURUSHO TTAM KUMAR DATE OF HEARING 2 .1 . 201 7 DATE OF PRONOUNCEMENT 2 . 1 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 29.12.2015 PASSED BY THE LEARNED CIT(A) - 1, AURANGABAD AND IT RELATES TO A.Y. 2009 - 10. 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A), AURANGABAD HAS PASSED AN EX - PARTE ORDER ON THE REASONING THAT THE ASSESSEE DID NOT COMPLY WITH THE EARLIER NOTICES. LEARNED COUNSEL SUBMITTED THAT ALL THE NOTICES R EFERRED TO IN PARAGRAPH 2 OF THE ORDER PASSED BY THE LEARNED CIT(A) HAVE BEEN ISSUED BETWEEN JULY, 2015 TO DECEMBER, 2015. HE SUBMITTED THAT THE ASSESSEE HAD GIVEN THE PREMISE TO WHICH NOTICES WERE ISSUED , ON LEAVE AND LICENSE BASIS IN THE MONTH OF FEBRUAR Y, 2015 TO A WORKING PERSON. HENCE THE TENANT OF THE BUILDING WAS NOT AVAILABLE DURING THE DAY TIME. HENCE IT WAS NOT CLEAR AS TO WHETHER NOTICES WERE SERVED OR NOT. ACCORDINGLY, MR. SHIBSHANKAR GHOSH 2 HE SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE LEARNED CIT(A) SIN CE HE DID NOT RECEIVE NOTICE S . 3. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS NOT ESTABLISHED THAT THE NOTICE S WERE RETURNED BACK UN - SERVED. 4. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE ASS ESSEE HAS NOT PROPERLY SUBSTANTIATED HIS CLAIM THAT THE NOTICES WERE NOT SERVED UPON HIM. THERE SHOULD NOT BE ANY DISPUTE THAT IT IS THE RESPONSIBILITY OF THE ASSESSEE TO INTIMATE ABOUT THE CHANGE OF ADDRESS TO THE TAX AUTHORITIES, WHICH THE ASSESSEE HAS F AILED TO DO SO. AT THE SAME TIME THE ASSESSEE HAS SUBMITTED THROUGH AFFIDAVIT THAT HE HAS GIVEN PREMISES ON LEAVE AND LICENSE BASIS TO SOME WORKING PERSON AND HENCE THE EXPLANATIONS OF THE ASSESSEE SHOULD ALSO NOT BE REJECTED ALTOGETHER. SINCE THE LD CI T(A) HAS PASSED EX - PARTE ORDER AND SINCE THE ASSESSEE HAS CLAIMED TO HAVE NOT RECEIVED THE NOTICES, WE ARE OF THE VIEW THAT THE ASSESSEE, IN THE INTEREST OF NATURAL JUSTICE, SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE LD CIT(A). UNDER THESE SET OF FACTS, ASSESSEES REQUEST SHOULD BE ACCEPTED ON TERMS. ACCORDINGLY, WE IMPOSE A COST OF ` 5000/ - UPON THE ASSESSEE , WHICH SHALL BE PAID TO THE CREDIT OF INCOME TAX DEPARTMENT AS OTHER PAYMENT ON OR BEFORE 31.1.2017. SUBJECT TO THE PAYMENT O F COST REFERRED ABOVE, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO ADJUDICATE ALL THE ISSUES AFRESH BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL F ILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 02 . 0 1 .201 7. SD/ - SD/ - (RAVISH SOOD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 02 / 1 / 20 1 7 MR. SHIBSHANKAR GHOSH 3 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRA R) PS ITAT, MUMBAI