BAKER TECHNICAL SERVICES P.LTD, MUMBAI V. ITO 9(1)(2), MUMBAI

ITA 3376/MUM/2010

• Counselvise Citation: 337619914 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 04-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.3376/MUM/2010 (ASSESSMENT YEAR: 2005-06) M/S. BAKER TECHNICAL SERVICES PRIVATE LIMITED, PLANET, 2ND FLOOR, 10, TURNER ROAD, BANDRA (W), MUMBAI -400 050 ....... APPELLANT VS ITO -9(1)(2), MUMBAI ..... RESPONDENT PAN: AAACB 3478 L APPELLANT BY: SHRI K. GOPAL RESPONDENT BY: SHRI V.V. SHASTRI DATE OF HEARING: DATE OF PRONOUNCEMENT: 04.08.2011 19.08.2011 O R D E R PER R.S. PADVEKAR, JM: IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-19, MUMBAI DATED 22.03.2010 FOR THE A.Y. 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS CIT (A)] ERRED IN PAS SING THE ORDER DATED 22.03.2010 UPHOLDING THE ORDER OF THE LD. AO WITHOUT AFFORDING THE APPELLANT PROPER OPPORTUNITY OF BEING HEARD. THEREFORE, THE ORDER DATED 22.03.2010 PASSED BY THE LD. CIT (A) IS IN BREACH OF PRINCIPLES OF NATURAL JUSTICE AND HENCE, THE SAME MAY BE QUASHED AND SET ASIDE. ITA 3376/MUM/2010 M/S. BAKER TECHNICAL SERVICES PRIVATE LIMITED 2 2. THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION O F THE AO IN MAKING AN ADDITION OF ` 9,32,894/- BY DETERMINING THE ANNUAL LETTING VALUE OF THE PROPERT Y AT ` 13,50,000/- AS AGAINST THE ACTUAL RENT RECEIVED OF ` 78,000/-, WITHOUT APPRECIATING THE FACT AND CIRCUMSTANCES OF THE CASE. THE APPELLANT, THEREFOR E, PRAYS THAT THE ADDITION OF ` 9,32,894/- TO THE INCOME FROM HOUSE PROPERTY IS NOT AT ALL JUSTIFIED AND THE SAME MAY BE QUASHED. 3. THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER IN DENYING THE SET OFF OF BROUGHT FORWARD LOSSES OF EARLIER YEARS AMOUNTING TO ` 3,005/- WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APPELLANT PRAYS THA T THE LD. CIT (A0 IS NOT AT ALL JUSTIFIED IN DISALLOW ING THE SET OFF OF BROUGHT LOSSES OF EARLIER YEARS AMOUNTING TO ` 3,005/- AND HENCE, THE SAME MAY BE DELETED. 4. THE APPELLANT DENIES ANY LIABILITY TO PAY THE IN TEREST UNDER SECTION 234B AND 234C OF THE INCOME TAX ACT, 1961. HENCE, THE SAME ARE NOT LEVIABLE. 2. THE ASSESSEE IS IN THE TRADING OF SHARES AND SEC URITIES. THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 20 05-06 DECLARING TOTAL INCOME AT ` 97,900/-. THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT ` 9,91,307/-. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT (A) BY RAISING THE DIFFERENT GRIEVANCES. THE LD. CIT (A) DISPOSED OFF THE ASSESSEES APPEAL EX-PARTE DISMISSING THE SAME. ITA 3376/MUM/2010 M/S. BAKER TECHNICAL SERVICES PRIVATE LIMITED 3 3. WE HAVE HEARD THE PARTIES. WE FIND THAT, AS PER ORDER OF THE LD. CIT (A) THE APPEAL WAS POSTED FOR HEARING ON 8.02.2 010. ON THE SAID DATE, THE ASSESSEE SOUGHT THE ADJOURNMENT. AGAIN T HE APPEAL WAS FIXED ON 20TH FEBRUARY 2010. BUT IT APPEARS THAT T HERE WAS NO RESPONSE FROM THE ASSESSEE. NOWHERE, IT IS MENTION ED BY THE LD. CIT (A) THAT NOTICE WAS DULY SERVED ON THE ASSESSEE FIX ING THE DATE OF HEARING. OTHERWISE ALSO, NO PREJUDICE SHOULD HAVE BEEN CAUSED TO THE LD. CIT (A) IF ONE OPPORTUNITY WOULD HAVE BEEN GIVE N. IN OUR OPINION, THE LD. CIT (A) HAS DISPOSED OFF THE APPEAL IN UNDUE HASTE . WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT (A) A ND RESTORE THE ENTIRE MATTER TO HIS FILE FOR FRESH ADJUDICATION AS PER LA W AFTER GIVING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 9TH AUGUST 2011. SD/- SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 19TH AUGUST 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)19, MUMBAI. 4) THE CIT-V, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 3376/MUM/2010 M/S. BAKER TECHNICAL SERVICES PRIVATE LIMITED 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 02.08.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 02.08.2011 SR.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 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER