PRAVEEN BHASKAR RAO, MUMBAI V. INCOME TAX OFFICER-24(3)(3), MUMBAI

ITA 3189/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7962 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: BHAVIN PAREKH
• Keywords: Opportunity of being heard

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) I.T.A. NO. 3189 /MUM/ 201 8 (ASSESSMENT YEAR 20 12 - 13 ) MR. PRAVEEN BHASKAR RAO B - 104, 1 ST FLOOR NEW PRABHAT CHS WESTERN EXPRESS HIGHWAY NEAR BISLERI COMPOUND ANDHERI - EAST MUMBAI - 400 069. PAN : AFYPR2366F V S . ITO - 24(3)(3) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI BHAVIN PAREKH DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 19 .6 . 201 9 DATE OF PRONOUNCEMENT 01.7 . 201 9 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT - A DATED 28.12.2016 PERTAINING TO ASSESSMENT YEAR 2012 - 13 WHEREIN LEARNED CIT - A HAS DISMISSED THE APPEAL FOR NON - PROSECUTION. 2. BRIEF FACTS OF THE CASE ARE THAT IN THE ASSESSMENT ORDER ASSESSING OFFICER MADE 20% DISALLOWANCE OF BUS HIRE CHARGES. UP ON ASSESSEE'S APPEAL LEARNED CIT - A NOTED THAT NOBODY HAS REPRESENTED THE ASSESS EE DESPITE NOTICE. HENCE HE DREW ADVERS E INFERENCE AND WAS OF THE OPINION THAT THE APPEAL WAS LIABLE TO BE DISMISSED FOR NO N - P ROSECUTION. THEREAFTER HE ALSO HELD THAT IN ABSENCE OF FURTHER EVIDENCES HE WAS UPHOLDING THE ORDER OF ASSESSING OFFICER. 3. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE THE ITAT. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUN SEL OF THE ASSESSEE SUBMITTED THAT AUTHORITIES BELOW HAVE TOTALLY ERRED IN APPRECIATING THE FACTS OF THE CASE. HE SUBMITTED THAT ASSESSEE IS AN INDIVIDUAL AND HE GETS TICKET FOR THE 2 INDIVIDUAL CUSTOMERS IN DIFFERENT BUSES OPERATED BY DIFFERENT OPERATORS. H E SUBMITTED THAT ASSESSEE GETS ONLY COMMISSION. HE SUBMITTED THAT ASSESSEE HAS NOT HIRED ANY BUS AS SUCH. 4. UP ON CAREFUL CONSIDERATION I FIND THAT THESE FACTS ARE NOT ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER. MOREOVER, I ALSO FIND THAT IT IS I NCUMBENT UPON THE LEARNED CIT - A TO PASS AN ORDER ON THE MERIT S OF THE CASE AND NOT DISMISS THE APPEAL FOR NON - PROSECUTION. FOR THIS PROPOSITION I PLACE RELIANCE UPON FOLLOWING CASE LAWS. 1. CIT VS PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM)302 2. CIT VS S CHENNIAPPA MUDALIAR(1969)74 ITR 1(SC) ACCORDINGLY IN THE INTEREST OF JUSTICE I REMIT THE ISSUE RAISED IN THE APPEAL THE FILE OF THE LEARNED CIT - A. LEARNED CIT - A IS DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. LEARNED COUNSEL OF THE ASSESSEE HAS ALSO GIVEN UNDERTAKING THAT HE SHAL L APPEAR BEFORE THE LEARNED CIT( A ) SUO MOTTO WITHIN TWO MONTHS OF THIS ORDER TO CANVAS THE APPEAL. 5. IN THE RESULT T HIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1.7 . 201 9 . SD/ - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 1 / 7 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 3 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI