BHARAT LAKHAMSHI SHAH, MUMBAI V. ASST CIT 30(1), MUMBAI

ITA 2613/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0122 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Application of stay

Judgement Text

PAGE 1 OF 5 IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM AND SHRI SANDEEP GOSAIN, JM SA NOS. 149 /MUM/2018 (ARISING OUT OF ITA NO. 2613 /MUM/2017) (ASSESSMENT YEARS: 2012 - 13 ) AND ITA NO. 2613/MUM/2017 FOR AY 2012 - 13 SHRI BHARAT LAKHAMSHI SHAH 7, RONAK BHUVAN, DAFTARY ROAD, MALAD (E), MUMBAI - 400 097 / VS. ACIT - 30 (1) PRATYAKSHAKAR BHAVAN, BKC BANDRA, MUMBAI - 400 051 ./ ./ PAN/GIR NO. AA EPS1617D ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRAYAG JHA & PRATEEK JHA, AR / RESPONDENT BY : SHRI T. A. KHAN, DR / DATE OF HEARING : 09/03 /201 8 / DATE OF PRONOUNCEMENT : 09/03/2018 / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER : THE ABOVE STAY APPLICATION FILED BY THE ASSE SSEE IS ARISING OUT OF ITA NO. 2613/MUM/17 FOR AY 2012 - 13 FOR SEEKING STAY OF RECOVERY OF RS. 2,15,40,893/ - . 2. WHILE CONSIDERING THE STAY APPLICATION, WE HAVE PERUSED THE FILE OF MAIN APPEAL FILED BY THE ASSESSEE. T HE ASSESSEE HAS FILED THE MAIN APPEAL BEFORE US SA NO. 149 /MUM/2018 & ITA NO. 2613/MUM/17 SHRI BHARAT LAKHAMSHI SHAH PAGE 2 OF 5 AGAINST THE EX - PARTE ORDER PASSED BY LD. CIT(A) DATED 25.01.17. THE LD. AR AS WELL AS DR ARE ALSO PREPARED TO ARGUE ON THE MERITS OF THE CASE. THEREFORE, WE HAVE D ECIDED TO DISPOSE OF THE MAIN APPEAL ALONG WITH THE STAY APPLICATION. 3. THE SOLITARY GROUND RAISED BY THE ASSESSEE IN THE MAIN APPEAL, IS AGAINST CHALLENGING THE ORDER OF LD. CIT(A) IN CONFIRMING ADDITION S OF UNSECURED LOAN OF RS. 5,00,93,004/ - U/S 68 OF THE I.T. ACT. 4. AS PER THE FACTS OF THE CASE , ASSESSEE IS A BUILDER AND IS ENGAGED IN THE PROPERTY DEVELOPMENT . DURING THE COURSE OF ASSESSMENT, AO NOTICED THAT THE ASSESSEE HAD OBTAINED DIFFERENT LOANS FROM THE DIFFERENT PARTIES AND IN THIS RESPECT, AO CALLED FOR CONFIRMATIONS IN RESPECT OF THESE LOANS FROM THE ASSESSEE. IN THE ABSENCE OF ANY CONFIRMATION IN RESPECT OF LOANS, THE AO MADE ADDITIONS OF RS. 5,00,93,004/ - U/S 68 OF THE I.T. ACT. 5. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED THE APPEAL BEFORE LD. CIT(A) . SINCE NOBODY APPEARED BEFORE LD. CIT(A), THEREFORE, LD. CIT(A) PASSED EX - PARTE ORDER DATED 25.01.17 AND DISMISSED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE ASSESSEE HAS CHALLENGED THE EX - PARTE ORDERS PASSED BY LD. CIT 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT LD. CIT(A) HAD CATEGORICALLY MENTIONED IN ITS ORDER THAT SEVERAL OPPORTUNITY OF HEARING WERE OFFERED TO THE ASSESSEE BY SERVING NOTICES, BUT SA NO. 149 /MUM/2018 & ITA NO. 2613/MUM/17 SHRI BHARAT LAKHAMSHI SHAH PAGE 3 OF 5 NEITHER ANY COMPLIANCE NOR ANY ADJOURNMENT PETITION WAS FILED BY THE ASSESSEE, WHICH SHOWS THAT THE ASSESSEE HAD NO INTEREST TO PURSUE OR PROSECUTE THE APPEAL. WHEREAS ON THE CONTRARY, LD. AR SUBMITTED THAT ASSESSEE WAS VERY MUCH INTEREST TO PURSUE OR PROSECUTE THE APPEAL. IT WAS SUBMITTED THAT ASSESSEE WAS SUFFERING FROM ILLNESS AND THEREFORE COULD NOT APPEAR BEFORE LD. CIT(A) AND HENCE IN THE ABSENCE OF THE ASSESSEE OR HIS REPRESENTATIVE, THE LD. CIT(A) DECIDED THE APPEAL EX - PARTE. AFTER HEARING THE ARGUMENTS OF BOTH THE COUNSELS AT LENGTH AND PERUSAL OF RECORD, WE FIND THAT ASSESSEE HAD NOT APPEARED BEFORE LD. CIT(A) EVEN INSPITE OF SERVICE OF NOTICES, WITHOUT ANY JUSTIFICATION. WHEREAS IT W AS THE BOUNDED DUTY OF THE ASSESSEE OR HIS COUNSEL TO APPEAR BEFORE LD. CIT ON THE DATE FIXED. THE ASSESSEE HAS NOT ACTED WITH DUE DILIGENCE. NEVERTHELESS THE PRINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERI TS AFTER PROVIDING DUE OPPORTUNITY OF HEARI NG TO BOTH THE PARTIES. IN OUR VIEW, IN THE PRESENT CASE ADEQUATE OPPORTUNITY OF H EARING TO THE ASSESSEE WAS PROVIDED BY THE LD. CIT (A). BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE , WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE M ET ONLY WHEN WE PROVIDE ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT( A) THEN , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIF FICULTY. THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION, WE SET SA NO. 149 /MUM/2018 & ITA NO. 2613/MUM/17 SHRI BHARAT LAKHAMSHI SHAH PAGE 4 OF 5 ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF LD. CIT (A) FOR FRESH DECISION AND ASSESSEE IS DIRECTED TO APPEAR BEFORE LD. CIT(A) ON 19.04.18. IT IS NEEDLESS HERE TO MENTION THAT THE ASSESSEE SHALL NOT TAKE ADJ OURNMENT WITHOUT A VALID REASON AND SHALL EXTEND ALL NECESSARY COOPERATION TO THE LD. CIT(A) I N EXPEDITIOUS DISPOSAL OF THIS MATTER . BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION T O RESTORE THE MATTER BACK TO THE FILE OF L D CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT INDEPENDENTLY IN ACCORDANCE WITH LAW. REGISTRY IS DIRECTED TO SE RVE THE COPY OF THIS ORDER TO BOTH THE PARTIES AT THE EARLIEST. 7. IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND IN VIEW OF OUR ABOVE DECISION, THE STAY APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED AS IN FRUCTUOUS . ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH MARCH 2018 IMMEDIATELY AFTER THE COMPLETION OF HEARING. SD/ - SD/ - ( G. S. PANNU ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 09.03.2018 SR.PS DHANANJAY SA NO. 149 /MUM/2018 & ITA NO. 2613/MUM/17 SHRI BHARAT LAKHAMSHI SHAH PAGE 5 OF 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I