PAWAN LEASING & GROWTH FUND LTD, NAVI MUMBAI V. ITO 5(2)(4), MUMBAI

ITA 2305/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1535 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-04-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K MAHAJAN
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI PRAMOD KUM AR ,(AM) ITA NO.2305/MUM/2009 ASSESSMENT YEAR :2005-06 PAWAN LEASING & GROWTH FUND LTD. E/51-52, GRAIN MERCHANTS CO-OP HSG. SOCIETY LIMITED, SECTOR-17 VASHI NAVI MUMBAI-400 703. ..( APPELLANT ) P.A. NO. (AAACP 2835 P) VS. INCOME TAX OFFICER-5(2)(4) AAYAKAR BHAVAN MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI SAMEER G. DALAL RESPONDENT BY : SHRI K. K. MAHAJAN O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 22.1.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY IS ENGAGED IN THE BUSINESS OF SHARES AND SECURITIES. THE RET URN WAS FILED DECLARING TOTAL LOSS OF RS.1,05,929/- AND SHORT TERM CAPI TAL GAIN OF RS.18,02,537/-. HOWEVER, ASSESSMENT WAS COMPLETED AT AN IN COME OF ITA NO.2305/M/09 A.Y:05-06 2 RS.23,39,423/- INCLUDING DISALLOWANCE OF EXPENSES FOR RAI SING SHARE CAPITAL RS.10,000/- AND INTER-CORPORATE DEPOSITS RS.6,22, 153/- VIDE ORDER DATED 30.11.2007 PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961(THE ACT). ON APPEAL, THE LD. CIT(A) IN THE ABSE NCE OF ANY COMPLIANCE BY THE ASSESSEE WHILE CONFIRMING THE ADDITION M ADE BY THE ASSESSING OFFICER DISMISSED THE ASSESSEE'S APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE V ALIDITY OF THE EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND SUSTENANCE OF BOTH THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE, AT THE OUTSET, SUBMITS THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE OF DATE OF HEARING OF THE APPEAL AS THE ASSESSEE'S PREMISES AT 30 , KIRAN VILLA, PEDDAR ROAD, MUMBAI WAS UNDER REPAIR AND THE ASSESSEE SH IFTED TEMPORARILY AT E-51/52, GRAIN MERCHANT COOP HSG. SCY. LTD., SECTOR NO.17, VASHI, NAVI MUMBAI-400 703. HE, THEREFORE, SUB MITS THAT IN THE INTEREST OF JUSTICE THE EXPARTE ORDER PASSED BY THE LD. CIT(A) BE SET ASIDE AND THE MATTER MAY BE RESTORED BACK TO HIS FI LE TO DECIDE BOTH THE ISSUES AFRESH. ITA NO.2305/M/09 A.Y:05-06 3 5. ON THE OTHER HAND THE LD. DR SUPPORTS THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT THE CASE WAS FIXED FOR HEARING BEFORE HIM ON 19.1.2009 BUT NOBODY APPEARED, THEREFORE, HE PASSED EXPARTE ORDER IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER. A FTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF T HE CASE WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE ASSE SSEE BE ALLOWED ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT( A) AND RESTORE THE MATTER TO HIS FILE WHO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THER EFORE, ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4.6.2010. SD/- SD/- (PRAMOD KUMAR) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 4.6.2010. JV. ITA NO.2305/M/09 A.Y:05-06 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 28.5.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 31.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 4.6.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 7.6.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER