KASHINATH KOLEKAR, MUMBAI V. ITO 22(1)(3), MUMBAI

ITA 2371/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3709 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER IT A NO. 2371 /MUM/20 15 : (A.Y : 20 10 - 11 ) KASHINATH KOLEKAR 1111/48, RAMESHWAR CHS, KANNAMWAR NAGAR NO. 1, VIKHROLI (E), MUMBAI 400 083. PAN : ASTPK9437E ( APPELLANT ) VS. ITO - 22(1)(3), MUMBAI (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI A.K. KARDAM DATE OF HEARING : 20 /0 7 /2016 DATE OF PRONOUNCEMENT : 12 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 25 , MUMBAI DATED 29 . 01 .20 15 , PERTAINING TO THE ASSESSMENT YEAR 20 10 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 28 . 03 .20 13 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. INSPITE OF ISSUANCE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING, THEREFORE, WE PROCEED TO DECIDE THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DR ON MERIT IN TERMS OF RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963. 2 KASHINATH KOLEKAR ITA NO.2 3 71/MUM/2015 3. IN THIS APPEAL, THE FIRST AND THE FOREMOST PLEA OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN DISPOSING THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT DECIDING ON MERITS OF THE GROUNDS RAISED BEFORE HIM. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL WHOSE RETURN OF INCOME FOR ASSESSMENT YEAR 2010 - 11 WAS SUBJECT TO SCRUTINY ASSESSMENT WHEREBY THE TOTAL INCOME WAS ASSESSED AT RS.1,77,22,266/ - AS AGAINST THE RETURNED INCOME OF RS. 4,62,130 / - . IN THE SCRUTINY ASSESSMENT, VARIOUS ADDITIONS WERE MADE TO THE RETURNED INCOME, WHICH WERE CHALLENGED IN APPEAL BEFORE THE CIT(A) . CIT(A) HAS DISMISSED THE APPEAL WITHOUT GOING INTO THE MERITS OF THE CASE AS ACCORDIN G TO HIM ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL. AS PER CIT(A) NOBODY APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF ISSUING OF NOTICE OF HEARING. 5. AT THE TIME OF HEARING, IT WAS POINTED OUT TO THE LD. DR THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT DECIDING ON MERITS THE GROUNDS RAISED BEFORE HIM, WHICH IS UNSUSTAINABLE. IT WAS THEREFORE POINTED OUT THAT THE MATTER DESERVES TO BE REVISITED BY THE CIT(A) AS PER LAW. 6. HAVING CONSIDERED THE IMPUGNED ORDER AND THE SUBMISSIONS OF THE LD . DR, WE FIND THAT IN THE PRESENT CASE THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE COMMISSIONER (APPEALS) WITHOUT GOING INTO THE MERITS OF THE ISSUES RAISED BEFORE HIM. SEC. 250(6) OF THE ACT PRESCRIBES THAT THE ORDER OF THE COMMISSIONER (APPEALS ) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR 3 KASHINATH KOLEKAR ITA NO.2 3 71/MUM/2015 DETERMINATION, THE DECISION THEREON AND THE REASONS FOR SUCH A DECISION. OSTENSIBLY, THE CIT(A) IS OBLIGATED TO DISPOSE OF THE APPEAL IN THE MANNER PRESCRIBED IN SEC. 250(6) OF T HE ACT, WHICH REQUIRES THAT THE ISSUES RAISED BEFORE HIM BY WAY OF THE GROUNDS OF APPEAL ARE ADDRESSED, DECISION RENDERED THEREON BY STATING THE REASONS FOR SUCH A DECISION. THE SAID APPROACH IS CONSPICUOUS BY ITS ABSENCE IN THE IMPUGNED ORDER OF THE CIT( A), WHEREIN THE APPEAL HAS BEEN DISMISSED IN LIMINE WITHOUT ADVERTING TO THE MERITS OF THE GROUNDS OF APPEAL RAISED BEFORE HIM. THEREFORE, ON THIS COUNT ITSELF, THE IMPUGNED ORDER OF CIT(A) IS UNSUSTAINABLE. BE THAT AS IT MAY, WE DEEM IT FIT AND PROPER T O SET - ASIDE THE IMPUGNED ORDER OF CIT(A) AND REMAND THE APPEAL BACK TO HIS FILE FOR ADJUDICATION AFRESH AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. BEFORE PARTING, WE MAY ALSO STATE THAT THE CIT(A) HAS NOT CONDONED T HE DELAY IN FILING OF APPEAL. THIS ASPECT SHALL ALSO BE REVISITED BY THE CIT(A) IN THE ENSURING REMAND PROCEEDINGS AFTER HEARING THE ASSESSEE, AS PER LAW. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 T H AUGUST, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 2 T H AUGUST , 2016 * SSL * 4 KASHINATH KOLEKAR ITA NO.2 3 71/MUM/2015 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI