SURESH PRASAD CHOKHANI, MUMBAI V. ITO WD 4(3)(1), MUMBAI

ITA 2794/MUM/2013

• Counselvise Citation: 279419914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATHEDE
• Assessee Lawyers: RAHUL K HAKANI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI H.L. KARWA, HONBLE PRESIDENT AND P.M . JAGTAP, AM ./ I.T.A. NO.2793 /MUM/2013 ( / ASSESSMENT YEAR : 2004-2005 SURESH PRASA D CHOKHANI HUF, 101-A, RIZVI PARK, S.V. ROAD, SANTACRUZ(WEST), MUMBAI 400 054. / VS. I.T.O. WARD 14(2)(1), 3 RD FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI. ./ PAN : AACHC0969A ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.2794 /MUM/2013 ( / ASSESSMENT YEAR : 2004-2005 SURESH PRASA D CHOKHANI 101-A, RIZVI PARK, S.V. ROAD, SANTACRUZ(WEST), MUMBAI 400 054. / VS. I.T.O. WARD 14(2)(1), 3 RD FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI. ./ PAN : ASKPC7748Q ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI RAHUL K. HAKANI R E SPONDENT BY : SHRI PRAKASH L. PATHEDE / DATE OF HEARING : 14-07-2014 / DATE OF PRONOUNCEMENT : 18-07-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THESE TWO APPEALS FILED BY TWO ASSESSEES, ONE IN TH E INDIVIDUAL CAPACITY AND OTHER IN THE CAPACITY OF HUF, ARE DIRECTED AGAI NST TWO SEPARATE ORDERS OF ITA 2793/M/13 & ITA 2794/M/13 2 THE LD. CIT(A)- 8, DATED 7-1-2013 AND THAT OF LD. C IT(A) -25, MUMBAI DTD. 31-1-2013. SINCE THE ISSUE INVOLVED IN BOTH THESE A PPEALS IS COMMON, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSE D OF BY THIS SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE, WHICH ARE ID ENTICAL IN BOTH THESE APPEALS EXCEPT THE AMOUNT IN DISPUTE, ARE AS UNDER: - I. COMMISSIONER OF IT. (A) OUGHT TO HAVE GIVEN FUR THER OPPORTUNITY TO APPELLANT TO REPRESENT HIS CASE BEFORE DECIDING EX- PARTY. 2. COMMISSIONER OF I.T. (A) OUGHT TO HAVE CONSIDERE D THAT ISSUE INVOLVED IN APPEAL AND OUGHT TO HAVE DECIDED APPEAL AFTER CO NSIDERING DETAIL ON THE RECORD OF THE ASSESSING OFFICER. 3. COMMISSIONER OF I.T. (A) ERRED IN NOT CONSIDERIN G THAT AO HAS MECHANICALLY MADE ADDITION WITHOUT CONSIDERING THE DETAILS AND EVIDENCE OF INVESTMENT PROVIDED BY ASSESSEE DURING THE ASSESSMENT PROCEEDING. 4. COMMISSIONER OF I.T. (A) ERRED IN NOT CONSIDERIN G THAT AO HAS NOT PROVIDED APPELLANT WITH THE VARIOUS EVIDENCE RELIED UPON BY HIM FOR MAKING ADDITION. 5. THE APPELLANT PLEAD BEFORE HONOURABLE ITAT TO DI RECT THE ASSESSING OFFICER TO: - (I) TO DIRECT AO TO PROVIDE ALL THE EVIDENCE RELIED UPON BY HIM FOR MAKING ADDITION OF RS.4,09,275/- (RS. 7,91,090/- IN THE CASE OF SURESH KUMAR CHOKHANI). (II) WITHOUT PREJUDICE TO RELIEF PLEADED IN EARLIER PARA RESTORE THE MATTER BACK TO COMMISSION OF INCOME TAX (APPEALS) FOR ADJU DICATING AFTER PROVIDING APPELLANT ALL THE DETAILS RELIED UPON BY AO. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT TH E APPEAL FILED BY THE ASSESSEE NAMELY SURESH PRASAD CHOKHANI (INDIVIDUAL) AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) R.W.S 147 OF THE INCO ME TAX ACT, 1961 HAS BEEN DISMISSED BY THE LD. CIT(A) EX-PARTE VIDE HIS IMPUGNED ORDER DATED 7-1-2013 FOR WANT OF PROSECUTION WITHOUT DECIDING T HE ISSUE INVOLVED THEREIN ITA 2793/M/13 & ITA 2794/M/13 3 ON MERIT. AS PER THE PROVISIONS OF SUB-SECTION (6) OF SECTION 250 OF THE ACT, IT IS INCUMBENT UPON THE CIT(A) TO DISPOSE OF THE APPE AL FILED BY THE ASSESSEE BY AN ORDER IN WRITING STATING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR SUCH DECISION. THE LD. C IT(A) IS ALSO REQUIRED TO ALLOW PROPER AND SUFFICIENT OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) THUS IS NOT IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF THE ACT AS CONTAINED IN SECT ION 250 OF THE ACT. WE THEREFORE CONSIDER IT FIT AND PROPER AND IN THE INT EREST OF JUSTICE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BA CK TO HIM WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT IN A CCORDANCE WITH LAW AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO RENDER ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL ON MERIT. THE APPEAL OF TH E ASSESSEE BEING ITA NO. 2794/MUM/2013 IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 4. AS REGARDS THE APPEAL OF THE OTHER ASSESSEE BEIN G ITA NO. 2793/MUM/2013, IT IS OBSERVED THAT THE SAID APPEAL HAS BEEN DISMISSED BY THE LD. CIT(A) VIDE AN APPELLATE ORDER DATED 31-1-2013 PASSED EX-PARTE FOR WANT OF PROSECUTION AS WELL AS ON MERIT. AS NOTED F ROM THE SAID ORDER, THE LD. CIT(A) IN THIS CASE ALSO APPEARS TO HAVE NOT AFFORD ED PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HAVING REGARD TO ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE DESE RVES ONE MORE OPPORTUNITY OF BEING HEARD IN THE INTEREST OF JUSTICE. WE THERE FORE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND RESTORE THE MATTER TO HIM WITH A DIRECTION TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT AFRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A PRO PER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DI RECTED TO RENDER ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT (A) TO DISPOSE OF THE APPEAL ON MERIT EXPEDITIOUSLY. THE APPEAL OF THE ASSESSEE BEING ITA NO. 2793/MUM/2013 IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ITA 2793/M/13 & ITA 2794/M/13 4 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2014. ( ) * 18-07-2014 SD/- SD/- (H.L. KARWA) (P.M. JAGTAP ) PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; * DATED 1880782014 [ .=../ RK , SR. PS ! '$% &% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. > () / THE CIT(A)CONCERNED, MUMBAI 4. > / CIT CONCERNED, MUMBAI 5. A ==C , C , / DR, ITAT, MUMBAI E BENCH 6. F / GUARD FILE. / BY ORDER, A = //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI