MOIZ SAIFUDDIN RAJKOTWALA, MUMBAI V. DCIT RG 2)(2), MUMBAI

ITA 236/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7125 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 11-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , HONBLE JUDICIAL MEMBER & SHRI DR. A.L. SAINI , HONBLE ACCOUNTANT MEMBER ITA NO. 236 / MUM /201 7 (ASST. YEAR : 20 11 - 12 ) MOIZ SAIFUDDIN RAJKOTWALA, FLAT NO.10, 2 ND FLOOR, SOUTH WING, MADHAV NAGAR, ABOVE MERWANS CAKE SHOP, S.V. ROAD, ANDHERI WEST, MUMBAI. V S . D CIT, RANGE - 20 ( 2 ), MUMBAI . PAN NO. AADPR 8982 M (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE . DEPARTMENT BY : SHRI SAURABHKUMAR RAI DR DATE OF HEARING : 18 / 0 6 /201 8 . DATE OF PRONOUNCEMENT : 22 / 0 6 /201 8 . O R D E R PER DR. A.L. SAINI , ACCOUNTANT MEMBER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2011 - 12 , IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) - 36, MUMBAI IN APPEAL NO. CIT(A) - 31/IT - 90/DCIT - 20(2)/14 - 15, DATED 21/10/2016 , WHICH IN TURN ARISES OUT OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDE R SEC TION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT, 'ACT'), DATED 28/03/2014 . 2 ITA NO. 23 6 / MUM /2017 ( MOIZ SAIFUDDIN RAJKOTWALA ) 2. THE GRIEVANCE S RAISED BY THE ASSESSEE ARE AS FOLLOWS : - 1. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING AN ORDER WITHOUT AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. APPELLANT SUBMITS THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW SAID ORDER PASSED IS BAD IN LAW AND DESERVES TO BE QUASHED. 2. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORDER OF LEARNED ASSESSING OFFICER IN DISALLOWING A SUM OF RS. 1,96,514/ - UNDER SECTION 23(1)(A) OF THE ACT. APPELLANT SUBMITS THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW SAID DISALLOWANCE U/S 23(1)(A) OF THE ACT IS BAD IN LAW AND DESERVES TO BE DELETED. 3. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORDER OF LEARNED ASSESSING OFFICER IN DISALLOWING A SUM OF RS. 2,86,438/ - UNDER SECTIO N 14A OF THE ACT. APPELLANT SUBMITS THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW SAID DISALLOWANCE U/S 14A OF THE ACT IS BAD IN LAW AND DESERVES TO BE DELETED. APPELLANT PRAYS FOR APPROPRIATE RELIEF. APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. 3 . AT THE TIME OF HEARING , NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF ISSUANCE OF NOTICE S FOR HEARING ON THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 36 (COLUMN NO.10) , AND THE LD.DEPARTMENTAL REPRESENTATIVE IS PRESENT FOR THE RESPONDENT - REVENUE. IN ABSENCE OF APPEARANCE OF THE ASSESSEE, THE APPEAL IS BEING DISPOSED OF EXPARTE QUA THE ASSESSEE AFTER HEARING THE LD.DEPARTMENTAL REPRESENTATIVE ON MERITS IN TERMS OF RULE 26 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. 3 ITA NO. 23 6 / MUM /2017 ( MOIZ SAIFUDDIN RAJKOTWALA ) 4 . WE NOTE THAT THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IS AN EXPARTE ORDER AND THE ASSESSEE COULD NOT PLEAD HIS CASE DURING THE APPELLATE PROCEEDINGS. DURING THE COURSE OF APPELLATE PROCEEDINGS , NOTICES FOR HEARING WERE ISSUED TO THE ASSESSEE, THE DETAILS OF WHICH ARE AS FOLLOWS: - DATE OF ISSUE OF NOTICE DATE OF HEARING REMARKS 27/06/2016 01/08/2016 NOTICE RETUR N ED WITH THE REMARKS UNCLAIMED. 02/08/2016 31/08/2016 REQUEST FOR ADJOURNMENT SUBMITTED ON 31/08/2016. ACCORDINGLY, ADJOURNED TO 21/09/2016 . --- 21/09/2016 NONE ATTENDED 19/09/2016 19/10/2016 NOTICE RETURNED BY THE POSTAL AUTHORITIES IT IS CLEAR FROM THE DATE OF HEARINGS NOTED ABOVE THAT THE ASSESSEE HAS PARTICIPATED IN APPELLATE PROCEEDINGS. WE ALSO NOTE THAT GROUNDS NOS. 1 & 2 RAISED BY THE ASSESSEE RELATE TO THE GRIEVANCE OF THE ASSESSEE THAT HE HAS NOT BEEN GIVEN REASONABLE OPPOR TUNITY OF BEING HEARD , THEREFORE, IT IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. AT THE COST OF REPETITION, GROUND NO.1 RAISED BY THE ASSESSEE IS GIVEN BELOW FOR READY REFERENCE : - 1. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING AN ORD ER WITHOUT AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. APPELLANT SUBMITS THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW SAID ORDER 4 ITA NO. 23 6 / MUM /2017 ( MOIZ SAIFUDDIN RAJKOTWALA ) PASSED IS BAD IN LAW AND DESERVES TO BE QUASHED . 5. A PERUSAL OF THE BODY OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) SHOWS THAT IT IS AN EXPARTE ORDER, WHICH HAS BEEN CHALLENGED BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY . THEREFORE , WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD. CIT(A) . UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE , WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE LD.CIT(A) FOR CONSIDERATION ON MERITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 2 N D DAY OF JUNE , 201 8 . S D / - S D / - ( SAKTIJIT DEY ) ( A.L. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2 2 N D JUNE , 201 8 . VR/ - 5 ITA NO. 23 6 / MUM /2017 ( MOIZ SAIFUDDIN RAJKOTWALA ) COPY TO: 1 . THE ASSESSEE - MOIZ SAIFUDDIN RAJKOTWALA, FLAT NO.10, 2ND FLOOR, SOUTH WING, MADHAV NAGAR, ABOVE MERWANS CAKE SHOP, S.V. ROAD, ANDHERI WEST, MUMBAI. 2 . THE REVENUE DCIT, RANGE - 20(2), MUMBAI. 3 . THE PR. CIT - 24, MUMBAI. 4 . THE CIT(A) - 36, MUMBAI. 5 . THE D.R . , MUMBAI. 6 . GUARD FILE. BY ORDER DY./ASST. REGISTRAR , ITAT, MUMBAI .