MALTIDEVI BIRBAL SINGH, MUMBAI V. ITO WD 2(2), MUMBAI

ITA 2863/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7847 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 6; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI D.K. AGARWAL (J.M.) AND SHRI J. SUDHAKA R REDDY (A.M.) ITA NO. 2863/MUM /2010 ASSESSMENT YEAR : 2005-06 SMT. MALTIDEVI BIRBAL SINGH, 21, JAI MATADI IND. ESTATE, BEHIND EKVIRA GAS GODOWN, BHAYANDER (EAST), DIST. THANE 401 105. PAN : ACEPS 2525 E VS. INCOME TAX OFFICER, WARD 2(2), THANE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY PARIKH RESPONDENT BY : SHRI RAJEEV AGARWAL O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 12.02.2019 (CORRECT DATE OF ORDER IS NOT KNOW N) PASSED BY THE LD. CIT U/S 263 OF THE INCOME TAX ACT, 1961 (THE ACT) F OR THE A.Y 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE, AN INDIVIDUAL DERIVES INCOME FROM MANUFACTURE OF WIRE & WIRE ROPE S. THE RETURN WAS FILED DECLARING TOTAL INCOME AT ` 4,07,734/-. HOWEVER, THE ASSESSMENT WAS COMPLETED AT AN INCOME OF ` 5,08,730/- VIDE ORDER DATED 25.06.2007 PASSED U/S 143(3) OF THE ACT. SUBSEQUENTLY, THE LD . CIT IN EXERCISE OF HIS POWERS U/S 263 OF THE ACT OBSERVED THAT THE ASSESSM ENT COMPLETED BY THE A.O. IS FOUND TO BE ERRONEOUS AND PREJUDICIAL T O THE INTERESTS OF THE REVENUE AND ACCORDINGLY HE ISSUED NOTICE DATED 14.1 2.2007 TO SHOW ITA NO. 28 63/MUM/2010 SMT. MALTIDE VI BIRBAL SINGH 2 CAUSE AS TO WHY ACTION U/S 263 SHOULD NOT BE TAKEN AND THE CASE WAS FIXED FOR HEARING ON 4.12.2007 I.E. PRIOR TO THE DA TE OF ISSUANCE OF NOTICE U/S 263. THEREAFTER, THE CASE WAS FIXED FOR HEARING ON VARIOUS DATES. THE ASSESSEE SOUGHT ADJOURNMENTS AND THE CASE WAS FINAL LY FIXED ON 23.12.09. IN THE ABSENCE OF ANY RESPONSE BY THE AS SESSEE, THE LD. CIT OBSERVED THAT THE ASSESSEE HAS NOTHING TO SAY AGAIN ST THE PROPOSED REVISION, THEREFORE, HE PASSED AN EX PARTE ORDER SE TTING ASIDE THE ASSESSMENT OF THE A.O. WITH A DIRECTION TO PASS FRE SH ORDER AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT, THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE INITIATION OF THE PROCEEDING U/S 263 AND SETTING ASIDE THE ASSESSMENT WITHOUT GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS AS UNDER:- 1. NOTICE U/S.263 DATED WAS ISSUED ON 14 TH DECEMBER, 2007. MR. ATUL MEHTA, CHARTERED ACCOUNTANT APPEARED BEFORE THE COM MISSIONER OF INCOME TAX, MR. A. SURYANARAYAN. AS THE COMMISSION ER OF INCOME TAX WAS BUSY WITH CERTAIN OTHER MATTERS, HE WAS INFORME D THAT A FRESH NOTICE WAS ISSUED. 2. THE COMMISSIONER OF INCOME TAX, MR. A. SURYANARAYAN WAS TRANSFERRED THEREAFTER. 3. A FRESH NOTICE DATED 14 TH DECEMBER, 2009 WAS RECEIVED FIXING THE HEARING ON 23 RD DECEMBER, 2009. MR. ATUL MEHTA, CHARTERED ACCOUNTANT CALLED UP THE OFFICE OF THE COMMISSIONER ON THE SAID DATE AND TALKED TO THE COMMISSIONER OF INCOME TAX. MR. K .K. SHARMA. THE COMMISSIONER OF INCOME TAX INFORMED MR. MEHTA THAT AS HE WAS BUSY, IT WOULD NOT BE POSSIBLE FOR HIM TO TAKE UP SMT. MA LTIDEVIS MATTER ON THAT DAY. MR. SHARMA INFORMED THAT MR. MEHTA COULD VISIT THEIR OFFICE AFTER A FEW DAYS. 4. AS MR. ATUL MEHTA WAS BUSY WITH FILING OF TIME BARR ING RETURNS AND OTHER MATTERS, HE APPEARED BEFORE THE COMMISSIONER ON 27 TH JANUARY, 2010 . AS THE COMMISSIONER WAS BUSY WITH CERTAIN OT HER MATTERS, HE WAS INFORMED THAT A FRESH NOTICE WOULD BE ISSUED. ITA NO. 28 63/MUM/2010 SMT. MALTIDE VI BIRBAL SINGH 3 5. NO FURTHER NOTICE WAS ISSUED AND THE APPELLANT THER EAFTER RECEIVED THE ORDER U/S.263. 6. YOUR HONOUR WOULD APPRECIATE THAT THE APPELLANTS C HARTERED ACCOUNTANT DID ATTEND TWICE BEFORE THE COMMISSIONER OF INCOME TAX AND ON BOTH THE OCCASIONS AS THE COMMISSIONER WAS B USY WITH SOME OTHER MATTERS, THE HEARING COULD NOT TAKE PLACE AND THE APPELLANTS CHARTERED ACCOUNTANT WAS INFORMED THAT A FRESH NOTI CE WOULD BE ISSUED. HOWEVER, WITHOUT ISSUING A FRESH NOTICE, THE APPELL ANT RECEIVED THE ORDER U/S.263. 7. ACCORDINGLY, THE PRINCIPLES OF NATURAL JUSTICE WERE VIOLATED IN AS MUCH AS NO FRESH NOTICE WAS ISSUED AND THE ORDER WAS PAS SED WITHOUT AFFORDING AN OPPORTUNITY TO THE APPELLANT TO PUT FO RTH HER CASE. 8. THE APPELLANT THEREFORE, PRAYS THAT THE ORDER U/S.2 63 MAY BE SET ASIDE AND THE COMMISSIONER MAY BE DIRECTED TO PASS A FRES H ORDER AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLA NT. 5. ON THE OTHER HAND, THE LD. D.R. WHILE RELYING ON TH E ORDER OF THE LD. CIT SUBMITS THAT HE HAS NO OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT FOR ALLOWING FRESH OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 6. AFTER CAREFULLY HEARING THE RIVAL PARTIES AND PE RUSING THE MATERIAL AVAILABLE ON RECORD AND IN THE ABSENCE OF ANY CONTR ARY MATERIAL PLACED ON RECORD BY THE LD. D.R., WE ARE OF THE VIEW THAT THE LD. CIT WAS NOT JUSTIFIED IN PASSING EX PARTE ORDER WITHOUT ALLOWING PROPER O PPORTUNITY OF BEING HEARD TO THE ASSESSEE, THEREFORE, IN THE INTEREST O F JUSTICE, WE CONSIDER IT FAIR AND REASONABLE THAT ONE MORE OPPORTUNITY BE PR OVIDED TO THE ASSESSEE TO REPRESENT HER CASE BEFORE THE LD. CIT A ND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT AND RESTORE T HE MATTER TO HIS FILE WHO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO L AW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWE D FOR STATISTICAL PURPOSE. ITA NO. 28 63/MUM/2010 SMT. MALTIDE VI BIRBAL SINGH 4 14. IN THE RESULT, ASSESSEES APPEALS STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 30 TH OF MARCH, 2011. SD/- (J. SUDHAKAR REDDY) ACCOUNTANT MEMBER SD/- (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 30 TH MARCH, 2011. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX 1, THANE 4. ITO WARD 2(2), THANE 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO. 28 63/MUM/2010 SMT. MALTIDE VI BIRBAL SINGH 5 1 DRAFT DICTATED ON 21 .3.11 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 22 .3.11 SR P S 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS