KETAN GUNVATRAI SHAH, MUMBAI V. ITO 25(3)(2), MUMBAI

ITA 3186/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71677 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K SINGH
• Assessee Lawyers: K SHIVRAM
• Keywords: Principle of natural justice
• Section: 144

Judgement Text

, , ,, , INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A BENCH. . .. . . .. . , ,, , / !'# !'# !'# !'# , ' ' ' ' BEFORE S/SH. B.R. MITTAL, JUDICIAL MEMBER & RAJENDR A, ACCOUNTANT MEMBER /. ITA NO.3186/MUM/2012, $ $ $ $ % % % % / ASSESSMENT YEAR-2008-09 KETAN GUNVATRAI SHAH C/10 PRABHHU KRUPA ZAVERI BAUG, S.V.ROAD, KANDIVALI (E) MUMBAI-400068 VS ITO 25(3)(2) MUMBAI- 400020 PAN: AWPPS3553D ( &' / APPELLANT) ( ()&' / RESPONDENT) $*+ $*+ $*+ $*+ , , , , ' '' ' / APPELLANT BY : SHRI K.SHIVRAM ! - , ' / REVENUE BY : SHRI K. SINGH $ $ $ $ - -- - +. +. +. +. / DATE OF HEARING : 04-11-2013 /0% - +. / DATE OF PRONOUNCEMENT : 08-11-2013 $ $ $ $ , 1961 - -- - 254 )1( ' '' ' +1 +1 +1 +1+ ++ + '2 '2 '2 '2 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM: CHALLENGING THE ORDER DATED 09.02.2012 OF CIT(A)-35 ,MUMBAI,ASSESSEE HAS FILED FOLLOWING GROUNDS OF APPEAL: 1.THE LD. CIT(A) ERRED IN UPHOLDING THE ASSESSMENT ORDER WITHOUT PROVIDING THE PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AS THE MATTE R WAS FIXED ON 10.02.2012 AND ON SAID DATE THE ASSESSEES REPRESENTATIVE SHRI R.K. THAR C.A. HAD A PPEARED, HOWEVER, IT WAS INFORMED BY THE OFFICE THAT THE CIT(A) WAS NOT PRESENT AND NEW DATE WILL BE INTIMATED, HOWEVER THE ASSESSEE RECEIVED EX-PARTE ORDER PASSED A DAY PRIOR TO THAT I.E. 09.02.2012. 2.THE LEARNED CIT(A) ERRED IN PASSING THE ORDER WIT HOUT ANY DISCUSSION ON MERITS IN REGARDS TO THE ADDITION MADE IN THE ASSESSMENT PROCEEDING NAMELY. (A) RS. 24,50,000/- BEING OP. BALANCE IN LOAN A/C (B) RS. 25,00,000/- BEING CAPITAL INTRODUCTION (C) RS. 12,51,318/- TRANSPORT EXPENSES U/S. 40(A)(I A) (D) RS. 6,73,088/- 10% OF VARIOUS EXPENSES. 3.THE LD. CIT(A) ERRED IN NOT VERIFYING THE ACTUAL STATEMENT OF ACCOUNT AND MERELY RELIED ON THE INCORRECT STATEMENT OF ACCOUNTS. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR4 DELETE ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 2 . ASSESSEE, AN INDIVIDUAL,HAD FILED HIS RETURN OF I NCOME ON 08.11.2008 DECLARING TOTAL INCOME OF RS. 6,00,878/-, ASSESSING OFFICER (AO) FINALISED TH E ASSESSMENT U/S 144 OF THE INCOME TAX ACT ON 13.12.2010 DETERMINING THE TOTAL INCOME OF THE ASSE SSEE AT RS. 81.34 LACS. DURING THE ASSESSMENT PROCEEDINGS,AO MADE CERTAIN ADDITIONS TO THE INCOME OF THE ASSESSEE. 2 ITA NO.3186/MUM/2012 KETAN GUNVATRAI SHAH 2.1 .ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY (FAA), WHO CALLED FOR A REMAND REPORT FROM THE AO.AO VIDE HIS REMAND REPORT ,DATED 21.09.2011,SUBMITTED THAT ASSESSEE HAD BEEN AFFORDED ADEQUATE OPPORTUNITY TO FURNISH D ETAILS IN RESPECT OF RETURN OF INCOME FILED BY THE ASSESSEE,THAT THE ASSESSEE HAD STATED THAT HE H AD FILED RETURN OF INCOME ON THE BASIS OF CERTAIN PROFIT & LOSS ACCOUNT AND BALANCE-SHEET,THAT DURING THE REMAND PROCEEDINGS,ASSESSEE HAD DISOWNED THE P & L A/C, BALANCE-SHEET FILED ALONG W ITH THE RETURN,THAT HE HAD FILED FRESH P & L A/C AND BALANCE-SHEET,THAT STAND TAKEN BY THE ASSES SEE WAS UNTENABLE, ILLOGICAL AND EVASIVE, THAT THERE WAS NO PROVISION IN THE ACT TO REPLACE P & L A/C AND BALANCE-SHEET, THAT ORIGINAL RETURN OF INCOME P&L A/C AND BALANCE-SHEET WAS DULY AUDITED A ND CERTIFIED BY THE AUDITOR OF THE ASSESSEE, THAT ASSESSMENT ORDER WAS,MADE ON THE BASIS OF ORIG INAL RETURN,SHOULD BE UPHELD. FAA SUPPLIED A COPY OF THE REMAND REPORT TO THE ASS ESSEE AND AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE ON 24.01.2012.AS PER THE REQUEST MADE BY THE AR,FAA ADJOURNED THE CASE TO 10. 02. 2012.IN HIS ORDER,FAA HAS FURTHER MENTIONED THAT T ILL THE DATE OF ORDER NONE HAD APPEARED BEFORE HIM,THAT HE HAD NOT RECEIVED ANY LETTER FROM THE AS SESSEE SEEKING FURTHER TIME, THAT HE HAD NO OTHER ALTERNATIVE BUT TO DECIDE THE CASE ON AVAILABLE MA TERIAL,THAT EVEN AFTER GIVING DUE OPPORTUNITY BY THE AO AT THE ASSESSMENT STAGE AND DURING THE POST REMAND REPORT HAD NOT SHOWN ANY INTEREST IN PURSUING THE APPEAL,THAT THE ASSESSEE HAD NOT FILED ANY REPLIES/COMMENTS AGAINST THE FINDING GIVEN BY THE AO.FINALLY, HE HELD THAT HE WAS UNABLE TO MA KE ANY INTERVENTION TO THE ASSESSMENT ORDER OR THE REMAND REPORT OF THE AO. 2.3. BEFORE US,AR SUBMITTED THAT ON 24.01.2012 MATTER WA S ADJOURNED BY THE FAA TO 10.02.2012, THAT FAA PASSED HIS ORDER ON 09.02.2012, THAT ASSES SEE HAD NO OPPORTUNITY TO SUBMIT HIS REPLY BEFORE THE FAA, THAT IN ABSENCE OF EFFECTIVE HEARIN G ORDER PASSED BY THE FAA HAD TO BE CANCELLED. DEPARTMENTAL REPRESENTATIVE(DR)SUPPORTED THE ORDER OF THE FAA AND SUBMITTED THAT ASSESSEE HAD NOT APPEARED BEFORE THE AO. 2.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT FAA HAD ADJOURNED THE CASE TO 10.02.2012 ON 24.01.2012,AS T HE AR OF THE ASSESSEE HAD SOUGHT TIME FOR FILING WRITTEN SUBMISSIONS.IN OUR OPINION ONCE HE H AD ADJOURNED THE CASE TO 10.02.2012,HE HAD TO WAIT FOR THE REPLY OF THE ASSESSEE TILL 10.02.2012. WE FIND THAT HE PASSED THE APPELLATE ORDER ON 09.02.2012,WITHOUT WAITING FOR THE REPLY OF THE ASS ESSEE.WE ARE UNABLE TO UNDERSTAND THE REASONS THAT COMPELLED THE FAA TO PASS THE ORDER ON 09.02.2 012 ESPECIALLY WHEN THE ASSESSEE WAS GIVEN A CHANCE TO MAKE HIS SUBMISSIONS VERY NEXT DAY.AS THE RE IS A CLEAR VIOLATION OF PRINCIPLE OF NATURAL JUSTICE,WE ARE OF THE OPINION THAT IN THE INTEREST OF JUSTICE MATTER SHOULD BE RESTORED BACK TO THE FI LE OF THE FAA FOR FRESH ADJUDICATION.HE IS DIRECTED TO PASS A REASONED ORDER AFTER HEARING THE ASSESSEE.WE DIRECT THE ASSESSEE TO EXTEND FULL COOP ERATION AND FILE ALL THE DETAILS AS REQUIRED BY THE FAA.CONSIDERING THE BEHAVIOUR OF THE ASSESSEE,IN RE PRESENTING HIS CASE,BEFORE THE REVENUE AUTHORITIES,WE AWARD A COST OF RS.7,000/- TO BE PAI D BY 30.11.2013.GROUND NO.1 IS ALLOWED IN FAVOUR OF THE ASSESSE IN PART . AS THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE FAA,THEREFORE,WE ARE NOT ADJUDICATING THE REMAINING GROUNDS. AS A RESULT,APPEAL FILED BY THE ASSE SSEE STANDS PARTLY ALLOWED. * +3 $*+ 4 5 - 1 2 6 ' !7 - !+ 89 . ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH NOVEMBER,2013 . '2 - /0% ' : ;$ 8 UOECJ UOECJ UOECJ UOECJ , 2013 0 - 1 < SD/- SD/- ( . = = = = . . B.R.MITTAL) ( !'# !'# !'# !'# / RAJENDRA) / JUDICIAL MEMBER ' ' ' ' /ACCOUNTANT MEMBER 3 ITA NO.3186/MUM/2012 KETAN GUNVATRAI SHAH / MUMBAI, ;$ /DATE: 08 TH NOVEMBER,2013 SK '2 '2 '2 '2 - -- - (+> (+> (+> (+> ?'>%+ ?'>%+ ?'>%+ ?'>%+ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / &' 2. RESPONDENT / ()&' 3. THE CONCERNED CIT (A) / @ A , 4. THE CONCERNED CIT / @ A 5. DR A BENCH, ITAT, MUMBAI / >B1 (+$ , ,, , , . . . 6. GUARD FILE/ 1 C )>+ )>+ )>+ )>+ (+ (+(+ (+ //TRUE COPY// '2$ / BY ORDER, D / 8 ! DY./ASST. REGISTRAR , /ITAT, MUMBAI