NILESH C CHHEDA, MUMBAI V. ITO WD 14(1)(3), MUMBAI

ITA 3246/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2914 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I.T.A. NO. 324 6 /MUM/201 4 ( / ASSESSMENT YEAR : 20 0 6 - 0 7 ) MR.NIL ESH C CHHEDA, BLOCK NO. 16A, 2 ND FLOOR MAHENDRA MANSION, 389/91 JSS ROAD, CHIRA BAZAR, MUMBAI - 400 0 02 / VS. INCOME TAX OFFICER, WARD 14(1)(3), MUMBAI - 400020 ./ PAN : AAAPC9344H / ASSESSEE BY NONE / REVENUE BY SHRI SANJEEV JAIN / DATE OF HEARING : 30. 5.2016 / DATE OF PRONOUNCEMENT : 24.0 6. 2016 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL F ILED BY THE ASSESSEE CHALLENGING THE ORDER OF LD.CIT(A) DATED 21.3.2014 FOR THE ASSESSMENT YEAR 200 6 - 07 BY WHICH THE LD.CIT(A) HAS CONFIRMED THE PENALTY OF RS. 52,83,000/ - WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE; DESPITE NOTICE OF HEARING SENT TO THE ASSESSEE BY RPAD. THEREFORE, WE DECIDE THIS APPEAL EX - PARTE WITHOUT THE PRESENCE OF ASSESSEE AND AFTER HEARING THE LD.DR. 2 ITA NO.3246 /MUM/2014 3. WE HAVE HEARD THE LD.DR AND PERUSED THE MATERIAL AVAILABLE BEFORE US. ON PERUSAL OF THE RECORD WE FIND THAT THE QUANTUM ADDITION ON WHICH IMPUGNED PENALTY HAS BEEN IMPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A) HAS BEEN SET ASIDE TO THE FILE OF THE LD.CIT(A) BY THE DECISION OF THE CO - ORDINATE BENCH OF MUMBAI TRIBU NAL IN ITA NO. I.T.A.3125/MUM/2010( AY:2006 - 07) ORDER DATED 10.9.2014. 4. THE LD. DR , ON THE OTHER HAND, APPEARS TO BE REASONABLY AGREED TO THE FACTUAL ASPECTS OF THE MATTER. 5. ON PERUSAL OF THE TRIBUNAL ORDER PASSED IN ASSESSEES OWN CASE IN ITA 3125/MUM /2010 (AY:2006 - 07) (SUPRA), WE FIND THAT THE ISSUE OF QUANTUM ADDITION HAS BEEN SET ASIDE TO THE FILE OF LD.CIT(A). THE RELEVANT PARAGRAPH OF THE SAID ORDER IS REPRODUCED BELOW : 5. WE ALSO HEARD LD D.R ON THIS ISSUE. WE HAVE ALREADY NOTICED THAT THE LD CIT(A) HAS EXPRESSLY STATED THAT HE HAS DECIDED THE ISSUES ON THE BASIS OF MATERIALS AVAILABLE ON RECORD, MEANING THEREBY, ALL THE ISSUES HAVE BEEN DECIDED EX - PARTE. BEFORE US THE ASSESSEE HAS EXPLAINED THE REASONS FOR NOT APPEARING BEFORE LD CIT(A) A ND HE HAS ALSO FURNISHED ADDITIONAL EVIDENCES TO SUPPORT HIS STAND IN RESPECT OF VARIOUS ISSUES. THOUGH THERE IS FAULT ON THE PART OF THE ASSESSEE ALSO IN SEEKING ADJOURNMENT EVERY TIME, YET, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE PROVIDED ONE MORE OPPORTUNITY TO EXPLAIN HIS STAND. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE ALL THE MATTERS TO HIS FILE WITH THE DIRECTION TO EXAMINE ALL THE ISSUES AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE AS SESSEE AND THEN DECIDE THEM IN ACCORDANCE WITH THE LAW. WE ALSO DIRECT THE ASSESSEE TO EXTEND FULL CO - OPERATION TO THE LD CIT(A) WITHOUT FAIL. 3 ITA NO.3246 /MUM/2014 6 . IN VIEW OF THE ABOVE, THE PRESENT APPEAL HAS NO LEGS TO STAND. ACCORDINGLY, WE DIRECT THE AO TO DELETE THE PENALTY OF RS.52,83,000/ - . HOWEVER, THE AO IS AT LIBERTY TO INITIATE PENALTY PROCEEDINGS IF HE ACROSS ANY MATERIAL AVAILABLE BEFORE HIM IN THE SET ASIDE PROCEEDINGS FOR LEVY OF PENALTY U/S 271(1)(C) OF T HE ACT. 7 . IN THE RESULT, THE APPEAL OF THE ASSE SSEE STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24TH JUNE , 201 6 S D SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / J UDICIAL MEM BER / A CCOUNTANT MEMBER MUMBAI ; DATED : 24 .6 .2016 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE T RUE COPY / BY ORDER, [ / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI