MUKESH DESAI, MUMBAI V. WARD 25(3)(1), MUMBAI

ITA 3031/MUM/2022

AI Insights

The case involves Mukesh Desai, the appellant, challenging a penalty levied under section 271(1)(c) of the Income Tax Act for the assessment year 2012-13. The appeal was initially barred by limitation but was admitted after the Tribunal found reasonable cause for the delay. The primary contention revolved around the absence of a written submission from the assessee at the CIT(A) level, leading to an ex-parte order. The assessee had also filed an RTI application to obtain a copy of the penalty notice, which was crucial for verifying the procedural correctness of the notice. The Tribunal, emphasizing the principles of natural justice, decided to set aside the CIT(A)'s order and remand the matter for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123958 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 21-05-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 29-11-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘D’ BENCH, MUMBAI. Before Shri B.R. Baskaran (AM) & Shri ABY T. Varkey (JM) I.T.A. No. 3031/Mum/2022 (A.Y. 2012-13) Mukesh Desai 9 Madhu Kunj, Tejapal Road Vile Parle East Mumbai-400 057. PAN : AABPD7788D Vs. Ward-25(3)(2) MUMBAI. (Appellant) (Respondent) Assessee by Shri Akash Kumar Department by Shri P.D. Chogule Date of Hearing 22.05.2023 Date of Pronouncement 22.05.2023 O R D E R Per B.R.Baskaran (AM) :- The assessee has filed this appeal challenging the order passed by the learned CIT(A), National Faceless Appeal Centre, Delhi for A.Y. 2012-13 wherein he has confirmed the penalty levied by the Assessing Officer under section 271(1)(c) of the I.T. Act. 2. The appeal is barred by limitation by 8 days and the assessee has moved a petition requesting the bench to condoned the delay 3. Having heard the parties on this preliminary issue, we are of the view that there was reasonable cause in filing the appeal belatedly before the Tribunal. Accordingly, we condone the delay and admit the appeal for hearing. 4. We noticed that the assessee did not file any written submission before the learned CIT(A) and hence he has passed the order on the basis of Mukesh Desai 2 material available on record, meaning thereby, the learned CIT(A) has passed the ex-parte order and the assessee did not get opportunity to present his case before the learned CIT(A). 5. The Learned AR appearing for the assessee sought adjournment on the ground that the assessee has filed a RTI application seeking photocopy of the notice issued under section 274 read with section 271(1)(c) of the I.T. Act. He submitted that the penalty was levied for two years in the hands of the assessee and assessee did not have copy of the penalty notice issued for the year under consideration. In another year, the copy of the notice was available and it was observed that inapplicable limb was not struck off in the notice. Hence the assessee raised a legal ground before the Tribunal in that year and the said appeal of the assessee was allowed on this legal ground. 6. The learned AR submitted that the assessee has sought copy of the notice under RTI in order to verify whether inapplicable limb has been struck off in the notice or not. If it is not struck off, then penalty proceeding is liable to be quashed as per the decision rendered by Hon’ble jurisdictional High Court. 7. We heard Ld D.R and perused the record. The reasoning cited by the Ld A.R is not convincing us to grant adjournment. We noticed earlier that the Ld CIT(A) has passed ex-parte order without hearing the assessee. Since the order has been passed by the learned CIT(A) ex-parte, in the interest of natural justice, we are of the view that the assessee should be provided with one more opportunity to present his case before the learned CIT(A). The assessee may raise the legal contentions, if advised so, before the learned CIT(A) also. Mukesh Desai 3 8. Accordingly, we set aside the order passed by the learned CIT(A) and restore all the issues to his file for adjudicating them afresh after affording adequate opportunity of being heard to the assessee. 9. In the result, appeal filed by the assessee is treated as allowed for statistical purposes. Pronounced in the open court on 22.5.2023 SD SD (ABY T. VARKEY) (B.R. BASKARAN) Judicial Member Accountant Member Mumbai; Dated : 22/05/2023 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(Judicial) 4. PCIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai