SANTOSH A PATHAK, MUMBAI V. ITO 25(1)(2), MUMBAI

ITA 337/MUM/2009

• Counselvise Citation: 33719914 RSA 2009
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 31-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: JAYANT S AJINKYA
• Keywords: Opportunity of being heard
• Section: 144; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI P.M. JAGTAP (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO. 337/MUM/2009 ASSESSMENT YEAR- 2005-06 SHRI SANTOSH ANDHYAPRASAD PATHAK, PROP. OF JMD CORPN., B-43, C/501, SAI SHRADHA, ASHOKVAN, BORIVALI (E),MUMBAI-400 066 PAN- AFZPP 5595F VS. THE ITO 25(1)(2), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI JAYANT S. AJINKYA RESPONDENT BY: SHRI D. SONGATE O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 15.10.2009 PASSED BY THE LD. CIT(A)-XXV FOR T HE ASSESSMENT YEAR 2005-06. 2. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 200 5-06 WAS FILED ON 18.8.2005 DECLARING TOTAL INCOME OF RS. 3,50,993/- ALONGWITH COMPUTATION OF TOTAL INCOME. THE RETURN WAS PROCES SED U/S. 143(1) OF THE I.T. ACT ON 20.7.2006. THE CASE WAS SELECTED F OR SCRUTINY AND THE ASSESSING OFFICER ISSUED NOTICES TO THE ASSESSEE ON VARIOUS DATES AS UNDER: ITA NO. 337/M/09 2 1. NOTICE U/S.143(2) DATED 26.07.2006. 2. NOTICE U/S.142(1) ALONGWITH QUESTIONNAIRE DATED 23. 07.2007. 3. LETTER DATED 03.10.2007 FOR FIXING THE HEARING ON 1 0.01.2007. 4. NOTICE U/S.142(1) DATED 21.11.2007. 5. FINAL OPPORTUNITY NOTICE AND LETTER DATED 04.12.200 7 FOR FIXING THE HEARING ON 10.12.2007. IN COMPLIANCE TO ABOVE NOTICES, A C.A., SHRI JAYANT S. AJINKYA ATTENDED AND SUBMITTED LETTER OF AUTHORITY BEFORE T HE ITO BUT DID NOT SUBMIT ANY OF THE DETAILS ASKED VIDE QUESTIONNAIRE DATED 23.07.2007. 3. THE AO THEN PASSED THE ORDER U/S. 144. AGGRIEVE D ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE A SSESSEE OBJECTED TO THE ORDER OF THE AO PASSED UNDER SECTION 144 OF THE ACT IN GROUND NO. 2 READS AS FOLLOWS: 2) THE LD. AO FAILED TO TAKE NOTE THAT:- A) APPELLANT DID ATTEND THROUGH HIS AUTHORIZED REPRESENTATIVES ON VARIOUS OCCASIONS. B) THAT THE APPELLANT FURNISHED LETTERS DT. 10 TH DECEMBER, 2007, 21 ST NOV. 2007. THAT THE APPELLANT COULD NOT ATTEND ON SOME DATES BECAUSE HE WAS UNFIT AND SUFFERING FROM ILLNESS AND ADVISED REST. C) THE APPELLANT HAS FURNISHED VARIOUS DETAILS OF HIS ABSCONDING STATUS AND DOCUMENTARY EVIDENCE PRODUCED FOR THE SAME DURING THE RELEVANT ASSESSMENT YEAR 2005-06. HE HAD APPLIED FOR ANTICIPATORY BAIL TO THE HIGH COURT ASSESSMENT YEAR 2005-06 AS THERE WERE CRIMINAL PROCEEDINGS AGAINST THE ASSESSEE 4. THE LD. CIT(A) HAS AT PAGE-3 OF HIS ORDER HELD A S FOLLOWS: FIRST AND SECOND GROUNDS OF APPEAL ARE THAT THE IT O ERRED IN PASSING THE ASSESSMENT U/S.144 (WRONGLY MENTIONED I N THE GROUND AS 143(3) WHEN IN FACT THE APPELLANT HAD COMPLIED T O THE NOTICES ISSUED BY THE A.O. AND WITHOUT CONSIDERING THE FACT THAT APPELLANT HAD SUBMITTED DETAILS OF HIS ABSCONDING STATUS AND DOCUMENTARY ITA NO. 337/M/09 3 EVIDENCE, THAT THE ANTICIPATORY BAIL WAS PENDING AG AINST HIM FOR THE CRIMINAL PROCEEDINGS AGAINST THE APPELLANT. 5. THE LD. CIT(A) FURTHER HELD AS FOLLOWS: A.O. HAD GIVEN MORE THAN ENOUGH OPPORTUNITIES. THE APPELLANT DID NOT FILE AUDIT REPORT ALONGWITH THE R ETURN OF INCOME. THE APPELLANT MADE THE A.O. TOTALLY HELPLESS. IN TH ESE CIRCUMSTANCES HE PASSED THE ORDER ON THE BASIS OF MATERIAL AVAILA BLE IN THE RETURN OF THE YEAR UNDER CONSIDERATION AS WELL AS OF EARLI ER YEAR. CONSIDERING THE DISCUSSION HELD ABOVE, GROUND NOS. 1 & 2 STAND DISMISSED. 6. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SHRI JAYANT S. AJINKYA PRAYED THAT AN OPPO RTUNITY SHOULD BE GIVEN TO THE ASSESSEE FOR REPRESENTING AGAINST ADDI TIONS AND DISALLOWANCES MADE BY THE AO AND CONFIRMED BY THE L D. CIT(A) AS THE ASSESSMENT HAS BEEN MADE EX PARTE U/S. 144. 7. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITT ED THAT ENOUGH OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO HIM BY THE LOWER AUTHORITIES. IN THESE CIRCUMSTANCES, WE DEEM IT FIT TO RESTORE T HE MATTER TO THE FILE OF THE AO TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 13 TH DAY OF APRIL, 2011 SD/- SD/- (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 13 TH APRIL, 2011 RJ ITA NO. 337/M/09 4 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 337/M/09 5 DATE INITIALS 1 DRAFT DICTATED ON: 31 . 03 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 31 .03.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______