Late Shri Motilal Hastimalji Bothra Through his L/H Mrs Bhanwari Devi Motilal Bothra, Mumbai V. ITO, Range - 19(2)(3), Mumbai

ITA 2766/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2303 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VP AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 2766 /MUM/201 9 ( / ASSESSMENT YEAR: 20 10 - 11 ) LATE SHRI MOTHILAL HASTIMALJI BOTHRA THROUGH HIS L/H MRS. BHAN WARI DEVI MOTILAL BOTHRA JANI NIWAS A - WING ROOM NO.4 SHENVI WADI C/O PREM KUMAR PANPALIYA, ADVOCATE, SHOP NO.9, 1 ST FLOOR CHANDAN PLAZA, RANIWADA ROAD, SANCHORE (RAJ), MUMBAI - 343041 . / VS. ITO, RANGE - 19(2)(3) 2 ND FLOOR, ROOM NO. 218, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007. ./ ./ PAN/GIR NO. : AFAPB8030N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 28 /10/2020 /DATE OF PRONOUNCEMENT: 12 /11 /2020 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 12 .0 2 . 201 9 PAS SED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 30 , MUMBAI (HEREINAFTER REFERRED TO AS THE CIT( A)) RELEVANT TO THE A.Y.2010 - 11 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - ASSESSEE BY : NONE REVENUE BY: SHRI V. TRIPATHI ( D R) ITA NO. 2766 /M/201 9 A.Y.20 10 - 11 2 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A ) GROSSLY ERRED IN REJECTING THE APPEAL WITHOUT CONSIDERING THE MERIT OF CASE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) GROSSLY ERRED IN THE ORDER PASSED AGAINST THE DECEASED PERSON IS NULL AND VOID AB - INITIO AND THUS TH E IMPUGNED ORDER IS NOT SUSTAINABLE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) GROSSLY ERRED IN UPHOLDING THE VALIDITY OF NOTICE U/S 147/148 ISSUED BY LD. AO. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING ADDITION OF RS.1,12,06,190/ - IN NON GENUINE PURCHASE. 5. THAT THE PETITIONER MAY KINDLY BE PERMITTED TO RAISE ANY ADDITIONAL OR ALTERNATIVE GROUNDS AT OR BEFORE THE TIME OF HEARING. 6. THE PETITIONER PRAYS FOR JU STICE & RELIEF. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE CASE CAREFULLY . IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, T HEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN TH E INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE O RDER OF THE CIT(A) DATED 12 .0 2 .201 9 PASSED BY THE CIT(A) WE FIND THAT THE CIT(A) HAS DECIDED THE MATTER OF CON TROVERSY IN ABSENCE OF THE ASSESSEE /REPRESENTATIVE OF THE A SSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE ACCORDANCE WITH LAW . A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE ITA NO. 2766 /M/201 9 A.Y.20 10 - 11 3 GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW . 4 . FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 5 . ACCORDINGLY IN TH E INTEREST OF JUSTICE , WE REMIT THE ISSUE RAISED IN THE APPEAL TO THE FILE OF THE LD. CIT(A). LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING AFTER GIVING AN PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE T HE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 12 /1 1 /2020 SD/ - SD/ - ( PRAMOD KUMAR ) (AMARJIT SINGH) / VICE PRESIDENT /JUDICIAL MEMBER MUMBAI; DATED : 12 /11 /2020 VIJAY PAL SINGH (SR. PS) ITA NO. 2766 /M/201 9 A.Y.20 10 - 11 4 / 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 CO PY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI