ANIL VASUDEO WANE, THANE V. ITO WD 2(3), THANE

ITA 287/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0902 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-01-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 13-01-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 143(3)

Judgement Text

1 ITA NOS. 287/M/09 ANIL VASUDEOWANE IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI P M JAGTAP, AM & SHRI R S PADVEKAR, J M ITA NO 287/MUM/2009 (ASST YEARS 2005-06 ) ANIL VASUDEOWANE HOTEL BEANO RESORTS VILLAGE KAMAN DONGRPADA, OPP: JAIN TEMPLE VASAI BHIWANDI BYPASS VASAI (E) - THANE VS THE INCOME TAX OFFICER WARD 2(3) THANE (APPELLANT) (RESPONDENT) PAN AALPW7814K ASSESSEE BY: SHRI DHARMESH SH AH REVENUE BY: SHRI SUMEET KUMAR O R D E R PER R S PADVEKAR: IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A)-II, THANE, FOR THE ASSESSMENT YEAR 2005-0 6 DATED 5.11.2008. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS IN HIS APPEAL: I) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN NOT APP RECIATING THAT THE ORDER PASSED BY THE AO U/S 143(3) OF THE ACT IS INCORRECT AND BAD IN LAW. II) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN NOT AP PRECIATING THAT THE ORDER PASSED AND THE APPEAL WAS DISMISSED WITH OUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. III) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIR MING THE ADDITION OF RS. 36,73,000/- ON ACCOUNT OF UNEXPLAIN ED LOANS. 2 ITA NOS. 287/M/09 ANIL VASUDEOWANE IV) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRM ING THE ADDITION ON ACCOUNT OF INCOME FROM HOUSE PROPERTY A T RS.25,20/- V) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRM ING THE ADDITION ON ACCOUNT OF DEPOSIT IN THE BANK ACCOUNT OF RS.33,444/- VI) THE LD CIT(A) HAS ERRED IN LAW AND FACTS IN CONFIRM ING THE DISALLOWANCE OF EXPENSES AMOUNTING TO RS.31,740/- B EING 25% OF THE AGGREGATE EXPENSES OF RS. 1,25,880/- 2 WE HAVE HEARD THE PARTIES. THE LD COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE LD CIT(A) HAS NOT GIVEN SUFFICIENT OPPORTU NITY TO THE ASSESSEE, TO REPRESENT HIS CASE AND IN FACT THE ORDER IS PASSED EX-PARTE WHEN THE ASSESSEE HAD GONE FOR SEEKING ADJOURNMENT. THE LD COUNSEL REFERRED TO PARA 3 OF THE ORDER OF THE LD CIT(A) AND SUBMITS THAT F ATHER AND MOTHER OF THE ASSESSEE WERE SERIOUSLY ILL AND FINALLY EXPIRED. M OREOVER, THE ASSESSEE WAS NOT KEEPING WELL. HE, THEREFORE, PLEADED THAT THER E WAS NO INTENTIONAL OR DELIBERATE NON-ATTENDANCE ON THE PART OF THE ASSESS EE BEFORE THE LD CIT(A). 2.1 PER CONTRA, THE LD DR SUBMITS THAT THE LD CIT(A ) HAS GIVEN AMPLE OPPORTUNITIES TO THE ASSESSEE BUT THE ASSESSEE DID NOT CARE TO RESPOND TO THE NOTICES ISSUED BY THE LD CIT(A). THE LD DR ALSO RE FERRED TO THE ASSESSMENT ORDER AND SUBMITS THAT EVEN BEFORE THE AO, THE ASSE SSEE DID NOT APPEAR AND ALSO DID NOT COOPERATE INSPITE OF GIVING AMPLE OPPO RTUNITIES AND HENCE, THE AO WAS COMPELLED TO PASS BEST JUDGMENT ASSESSMENT O N THE BASIS OF THE INFORMATION AVAILABLE ON RECORD. HE, THEREFORE, PLE ADED THAT NO SYMPATHY MAY BE SHOWN ON THE ASSESSEE AND THE ORDER OF THE L D CIT(A) MAY BE CONFIRMED. 3 ITA NOS. 287/M/09 ANIL VASUDEOWANE 3 ON PERUSAL OF THE ASSESSMENT ORDER, IT IS SEEN TH AT AMPLE OPPORTUNITIES WERE GIVEN TO THE ASSESSEE AND THE AO HAS GIVEN THE DETAILS THAT HOW THE NOTICES AND SUMMONS U/S 131(1) WERE SE RVED ON THE ASSESSEE. ON PERUSAL OF THE DETAILS GIVEN BY THE AO, WE FIND THAT IN SPITE OF GIVING AMPLE OPPORTUNITIES, THE ASSESSEE DID NOT APPEAR BE FORE THE AO AND SAME HAPPENED EVEN BEFORE THE LD CIT(A). IT APPEARS THA T AMPLE OPPORTUNITIES WERE GIVEN BUT FOR ONE REASON OR ANOTHER THE ASSESS EE REMAINED ABSENT. 4 THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING TH E REASONS THAT WHY HE COULD NOT ATTEND BEFORE THE AO AS WELL AS THE LD CI T(A). THE ASSESSEE STATED THE FACTS THAT ILL HEALTH OF HIS FATHER, WHO SUBSEQ UENTLY EXPIRED ON 7.12.2006. HE HAS FURTHER STATED THAT HE LOST HIS M OTHER ON 11.2.2007. HE ALSO STATED THAT IT WAS A SUDDEN DEMISE OF HIS PARE NTS, DUE TO WHICH HE WAS MENTALLY DISTURBED. HE ALSO STATED THAT HE WENT BAC K TO HIS NATIVE PLACE TO LOOK AFTER THE ANCESTRAL PROPERTIES AND DUE TO WHIC H HE COULD NOT EVEN CONCENTRATE ON HIS BUSINESS ACTIVITIES PROPERLY. 4.1 FROM THE AFFIDAVIT FILED BY THE ASSESSEE, IT AP PEARS THAT WHEN THE SCRUTINY ASSESSMENT WAS GOING ON THERE WAS SUDDEN D EMISE OF HIS PARENTS. PROBABLY, NON ATTENDANCE BEFORE THE A.O. WAS HAVING SOME REASONABLE CAUSE. SO FAR AS THE APPEARANCE BEFORE THE LD CIT( A) IS CONCERNED, WE FIND THAT THERE WAS NO REASONABLE CAUSE TO AVOID ATTENDA NCE BEFORE THE LD CIT(A). 5 CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMS TANCES, IN OUR OPINION, THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPO RTUNITY TO REPRESENT HIS CASE AS ADMITTEDLY, BOTH THE AUTHORITIES HAVE PASSE D EX-PARTE ORDER. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD CIT(A) AND RESTORE THE ENTIRE MATTER TO THE FILE OF THE A.O. FOR FRESH DETERMINATION OF THE ASSESEES TOTAL INCOME. AT THE SAME TIME, LEVY THE COST OF RS. 3000/- TO THE A SSESSEE FOR NOT ATTENDING 4 ITA NOS. 287/M/09 ANIL VASUDEOWANE BEFORE THE LD CIT(A). THE ASSESSEE IS DIRECTED TO DEPOSIT THE COST WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. THE AS SESSEE IS ALSO DIRECTED TO FILE THE ADDRESS FOR SERVING OF NOTICE TO THE AO WI THIN 30 DAYS FROM THE DATE OF THIS ORDER. 6 THE A.O. IS DIRECTED TO ISSUE NOTICE TO THE ASSES SEE AS PER THE NEW ADDRESS FURNISHED OR THE ADDRESS AS PER THE RETURN OF INCOME. 7 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 30 TH , DAY OF JULY 2010. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER (R S PADVEKAR ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH ,JULY 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI