RUBY AGARWAL, MUMBAI V. ITO WD 8(1)(2), MUMBAI

ITA 2326/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4243 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJIV KHANDELWAL MRS R M MADH
• Section: 143(3)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , ! '# ! '# ! '# ! '# , ,, , $ $ $ $ % % % % BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 2326/MUM./2011 ( $' ( )( / ASSESSMENT YEAR : 200708 ) RUBY HARISH AGARWAL BASAVANKAJE, ALANGAR P.O. BELVAL, MOODABIDRI MANGALORE, KARNATAKA 574 227 .. *+ / APPELLANT ' V/S INCOME TAX OFFICER WARD8(1), MUMBAI .... ,-*+ / RESPONDENT * . / PERMANENT ACCOUNT NUMBER AAXPA1065A $' (/! 0 1 / ASSESSEE BY : MR. RAJIV KHANDELWAL 2 0 1 / REVENUE BY : MRS. R.M. MADHAVI ' 0 ! / DATE OF HEARING 02.07.2013 ' 34) 0 ! / DATE OF ORDER 10.07.2013 ' ' ' ' / ORDER ! '# ! '# ! '# ! '# , ,, , $ $ $ $ 5 5 5 5 / PER AMIT SHUKLA, J.M. THE PRESENT APPEAL IS PREFERRED BY THE ASSESSEE, CH ALLENGING THE IMPUGNED ORDER 16 TH DECEMBER 2010, PASSED BY THE LEARNED COMMISSIONER (APPEALS)XVI, MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 200708. THE ASSESSEE HAS RAISED AS MANY AS EIGHT GROUNDS OF APPEAL, HOWEVER, THE SOLE ISSUE ARISING OUT OF THESE GROUNDS IS THAT THE LEARNED COMMISSIONER (APPEALS) HAS ERRED I N CONFIRMING THE ADDITIONS RUBY HARISH AGARWAL 2 WITHOUT GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE TO REBUT THE FINDINGS OF THE ASSESSING OFFICER. 2. BEFORE US, THE LEARNED COUNSEL, REPRESENTING THE AS SESSEE, SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) HAS PASSED EXPA RTE ORDER WITHOUT GIVING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESS EE. THE LEARNED COMMISSIONER (APPEALS) HAD ISSUED NOTICE OF HEARING ON 3 RD SEPTEMBER 2010, WHICH WAS NOT RECEIVED BY THE ASSESSEE. THEREAFTER, WITHOUT SERVI NG NOTICE OF HEARING HE HAD DECIDED THE APPEAL EXPARTE AGAINST HE ASSESSEE. TH EREFORE, HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RESTOR ED BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) FOR DECIDING THE ISSUE AFRES H. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED HUGE COMPILAT ION OF PAPER BOOK WHICH ALSO CONTAINS DOCUMENTS WHICH ARE IN THE FORM OF ADDITIO NAL EVIDENCE AND THE SAME SHOULD BE ADMITTED IN CASE THE APPEAL IS TO BE HEAR D ON MERITS. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESE NTATIVE SUBMITTED THAT EVEN BEFORE THE ASSESSING OFFICER, THE ASSESSEE DID NOT ATTEND ANY PROCEEDINGS EVEN AFTER REPEATED OPPORTUNITIES AND, THEREFORE, N O SECOND INNING SHOULD BE GIVEN TO THE ASSESSEE. 4. IN THE REJOINDER, THE LEARNED COUNSEL SUBMITTED THA T ALL THE NOTICES SENT BY THE ASSESSING OFFICER WERE ON WRONG ADDRESS AND THE ADDRESS WHICH WAS MENTIONED IN THE RETURN OF INCOME FILED FOR THE RELEVANT ASSE SSMENT YEAR AND FOR THE SUBSEQUENT ASSESSMENT YEAR WAS DIFFERENT. THE ASSES SING OFFICER SHOULD HAVE SERVED THE NOTICE ON THE CORRECT ADDRESS AS MENTION ED IN THE RETURN OF INCOME AND AVAILABLE ON RECORD. HE ALSO DREW OUR ADDITION TO T HE ADDRESS MENTIONED IN THE RETURN OF INCOME AND THE ADDRESS ON WHICH NOTICE WA S SERVED. IN SUPPORT OF THIS CONTENTION, AN AFFIDAVIT HAS ALSO BEEN FILED STATIN G THESE FACTS. 5. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIONS A ND ON A PERUSAL OF THE MATERIAL ON RECORD, WE FIND THAT THE NOTICES SENT B Y THE ASSESSING OFFICER WERE NOT ON THE ADDRESS AS MENTIONED IN THE RETURN OF INCOME . ONCE THE NOTICE HAS NOT BEEN SERVED, THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR NONCOMPLIANCE. EVEN BEFORE THE LEARNED COMMISSIONER (APPEALS), NO PROPER OPPOR TUNITY OF HEARING HAS BEEN GIVEN. THUS, IN ALL FAIRNESS AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ENTIRE MATTER SHOULD BE REMANDED BACK FOR DENOVO AD JUDICATION. CONSEQUENTLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RUBY HARISH AGARWAL 3 RESTORE THE ENTIRE MATTER TO THE FILE OF THE ASSESS ING OFFICER FOR DECIDING THE ISSUES AFRESH AFTER PROVIDING DUE AND EFFECTIVE OPPORTUNIT Y OF HEARING TO THE ASSESSEE TO PRESENT ITS CASE. THE ASSESSEE WOULD BE AT LIBERTY TO FILE ANY SUCH DOCUMENT WHICH MAY BE NECESSARY FOR THE ADJUDICATION OF THE ISSUE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PUR POSES. 6. / !6 $' (/! 0 70 89: ! ; ' 2! <= > 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ' 0 34) ? @'6 10 TH JULY 2013 4 0 A > ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY 2013 SD/- . .. . . . . . R.S. SYAL ACCOUNTANT MEMBER SD/- ! ! ! ! '# '# '# '# $ $ $ $ AMIT SHUKLA JUDICIAL MEMBER MUMBAI, @' @' @' @' DATED: 10 TH JULY 2013 ' 0 ,$! B CB)! / COPY OF THE ORDER FORWARDED TO : (1) $' (/! / THE ASSESSEE; (2) 2 / THE REVENUE; (3) D () / THE CIT(A); (4) D / THE CIT, MUMBAI CITY CONCERNED; (5) BGA ,$!$' , , / THE DR, ITAT, MUMBAI; (6) A( H / GUARD FILE. -B! ,$! / TRUE COPY '' / BY ORDER , 2. IJ / PRADEEP J. CHOWDHURY /K $'2 I / SR. PRIVATE SECRETARY 8 / < 2 / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI