GURU CONSTRUCTIONS, MUMBAI V. DCIT - 18(3), MUMBAI

ITA 2357/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1507 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 20-12-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHNI
• Assessee Lawyers: JAYANT V MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice; Non compliance
• Section: 142(1); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 2356-57/MUM/2016 ASSESSMENT YEAR: 2010-11 & 2011-12 M/S. GURU CONSTRUCTION. 102, GURU GANESH CO-OP HSG. SOC, BEHIND C.D.DESHMUKH GARDEN, MULUND (E), MUMBAI- 400 081. PAN:- AAGFG8912R VS. THE DCIT - 18(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. JAYANT V. MEHTA RESPONDENT BY : SHRI. ALOK JOHNI DATE OF HEARING: 21 /12 / 2016 DATE OF PRONOUNCEMENT: 21/12/20 16 O R D E R PER RAM LAL NEGI, JM THESE TWO APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST TWO ORDERS DATED 09/01/2015 PASSED BY THE LD. CIT(APPEALS)-33 MUMBAI FOR THE ASST. YEAR 2010-11 AND 2011-12 RESPECTIVELY, WHEREBY THE LD. CIT(A) DISMISSED BOTH THE APPEALS FILED BY THE ASSESSEE AGAINST THE ASSES SMENT ORDER U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). SINCE TH E ISSUES INVOLVED IN BOTH THE APPEALS ARE COMMON, THE SAME WERE CLUBBED, HEARD TO GETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE. 2 ITA NO 2356-57/MUM/2016 ASSESSMEN T YEAR: 2010-11 & 2011-12 ITA NO 2356/MUM/2016, AY.2010-11 2. BRIEF FACTS OF THE CASE PERTAINING TO THE ASSESS MENT YEAR 2010-11 ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE REL EVANT ASSESSMENT YEAR DECLARING THE TOTAL INCOME OF RS. 58,25,240/-. THE CASE WAS SELECTED FOR SCRUTINY AS THERE WAS A SURVEY OPERATION U/S 133A O F THE ACT AGAINST THE ASSESSEE DURING THE PREVIOUS YEAR. IN RESPONSE TO T HE NOTICE ISSUED U/S 142(2) AND SUBSEQUENT NOTICE U/S 142(1) OF THE ACT THE ASS ESSEE SUBMITTED CERTAIN DETAILS THROUGH ITS AUTHORIZED REPRESENTATIVE (AR). THEREAFTER NEITHER THE ASSESSEE NOR HIS AR APPEARED BEFORE THE AO. ACCORDI NGLY, THE AO PASSED THE ASSESSMENT ORDER U/S 144 OF THE ACT, DETERMINING TH E TOTAL INCOME OF THE ASSESSEE AT RS. 1,16,02,860/-. AGGRIEVED BY THE ACT ION OF THE AO THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT(A). 3. THE LD. CIT(A), POSTED THE CASE FOR HEARING. ON THE FIRST DATE OF HEARING THE CASE WAS ADJOURNED ON THE REQUEST OF THE ASSESS EES AUTHORIZED REPRESENTATIVE. ON THE SECOND DATE OF HEARING AGAIN ADJOURNMENT WAS SOUGHT BY THE ASSESSEE. THE LD. CIT(A) ADJOURNED THE CASE AND GRANTED LAST OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS APPEAL. HOWEVER, ON THE APPOINTED DATE NONE APPEARED ON BEHALF OF THE ASSESSEE. AGAIN A FRESH NOTICE WAS ISSUED BUT NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESE NTATIVE APPEARED BEFORE THE LD. CIT(A). ACCORDINGLY, THE LD. CIT(A) PROCEEDED EX PARTE AGAINST THE ASSESSEE OBSERVING AS UNDER:- FROM THE ABOVE SEQUENCE OF NON COMPLIANCE AND THE NON SERIOUSNESS OF THE APPELLANT IN THE MATTER OF PRESE NT APPEAL AND FROM SUCH CONDUCT OF THE APPELLANT, IT APPEARS THAT THEY ARE NOT INTERESTED IN PROSECUTING THE APPEAL. THEREFORE THI S APPEAL IS BEING DECIDED ON MERITS AS PER THE MATERIAL AVAILABLE ON RECORD. 3 ITA NO 2356-57/MUM/2016 ASSESSMEN T YEAR: 2010-11 & 2011-12 4. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL O N THE FOLLOWING EFFECTIVE GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), (LD. CIT(A)) ERRED IN MAKING OBSERVATION AND THERE UPON CONCLUDING THAT THE APP ELLANT IS NOT INTERESTED IN PROSECUTING THE APPEAL OF THE APPELLA NT. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), (LD. CIT(A)) ERRED IN HOLDING THE VIEW THAT THE APPELLANT IS NOT VIGILANT AND SLE EPS UPON THEIR RIGHTS. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), (LD. CIT(A)) ERRED IN MAKING OBSERVATION AND THERE UPON CONCLUDING THAT THE APP ELLANT HAS NOT EFFECTIVELY PURSUED THE APPEAL AFTER FILING THE APP EAL. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), (LD. CIT(A)) ERRED IN UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICE R AND DISMISSING THE APPEAL OF THE APPELLANT. 5. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE PASSED THEIR ORDERS WITHOUT HEARING THE ASSESSEE. SINCE, THE AO HAD PASSED THE ASSESSMENT ORDER U/S144 OF TH E ACT, THE LD, CIT(A) OUGHT TO HAVE HEARD THE ASSESSEE BEFORE PASSING THE IMPUGNED ORDER. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE MAY BE GRANTED AN OPPORTUNITY TO PRESENT ITS CASE BEFORE THE AO. 4 ITA NO 2356-57/MUM/2016 ASSESSMEN T YEAR: 2010-11 & 2011-12 6. ON THE OTHER HAND THE LD. CIT(A) RELYING ON THE ORDER PASSED BY THY LD. CIT(A) SUBMITTED THAT SINCE THE ASSESSEE FAILED TO PRESENT ITS CASE BEFORE THE AUTHORITIES BELOW DESPITE SUFFICIENT OPPORTUNITY GR ANTED TO IT, THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE, THEREFORE, THE A PPEAL IS LIABLE TO BE SET ASIDE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS PASSED BY THE AUTHORITIES BELOW. WE NOTICE THAT THE AO HAS NO T MENTIONED THE DETAILS OF NOTICES ISSUED/SERVED UPON THE ASSESSEE TO ENSURE I TS PRESENCE DURING ASSESSMENT PROCEEDINGS. IN THE ABSENCE OF THE SAID DETAILS IT CANNOT BE CONCLUDED THAT NON APPEARANCE OF THE ASSESSEE WAS A DELIBERATELY ACT. SO FAR AS THE APPELLATE ORDER IS CONCERNED, THOUGH THE LD. CI T(A) HAS MENTIONED THE DETAILS OF DATE OF HEARINGS AND NOTICES ISSUED/ SER VED UPON THE APPELLANT TO JUSTIFY THE EX PARTE PROCEEDINGS YET IN OUR CONSIDERED VIEW, SINCE THE ASSESSMENT ORDER HAS BEEN PASSED ON THE BASIS OF MA TERIAL ON RECORD WITHOUT HEARING THE ASSESSEE, THE ASSESSEE SHOULD GET AN OP PORTUNITY TO PRESENT HIS CASE BEFORE THE ASSESSING OFFICER IN THE INTEREST O F JUSTICE AND FAIR PLAY. KEEPING IN VIEW THE CARDINAL PRINCIPLES OF NATURAL JUSTICE WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND RESTORE THE APPE AL TO THE FILE OF AO WITH THE DIRECTION TO PASS THE ASSESSMENT ORDER AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE NOT TO SEEK ANY ADJOURNMENT ON FRIVOLOUS GROUNDS DURING TH E ASSESSMENT PROCEEDINGS. ITA NO 2357/MUM/2016, AY. 2011-12 THE FACTS AND THE GROUNDS OF APPEAL OF THIS APPEAL ARE IDENTICAL TO THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 AFORESAID (EXCEPT THE AMOUNT INVOLVED) AND SINCE WE HAVE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) THE APPEAL PERTAININ G TO THE ASSESSMENT 5 ITA NO 2356-57/MUM/2016 ASSESSMEN T YEAR: 2010-11 & 2011-12 YEAR 2010-11 AND RESTORED THE MATTER TO THE FILE OF AO WITH THE DIRECTION TO PASS THE ASSESSMENT ORDER AFRESH, WE ALSO SET AS IDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IN THIS CASE AND RES TORE THE MATTER TO THE FILE OF AO FOR PASSING ASSESSMENT ORDER AFRESH AFTE R HEARING THE ASSESSEE. IN THE RESULT, THE ASSESSEES APPEALS FOR ASST. YEAR 2010-11 & 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DECEMBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:21/12/2016 / 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. REGISTRAR) , / ITAT, MUMBAI PRAMILA