SACHIN SUDHAKAR NAVALE, THANE V. ACIT CIR 3, THANE

ITA 3490/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9929 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 12-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Opportunity of being heard; Corroborative evidences; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT, AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO . 3490 / MUM . /2017 ( ASSESSMENT YEAR : 20 12 13 ) SACHIN SUDHAKAR NAVALE SHOP NO.3, DINDAYAL CHS PANCHPAKHADI, THANE 400 602 PAN ACBPN5175E . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 3, MUMBAI . RESPONDENT ASSESSEE BY : SHRI SUBODH RATNAPARKHI REVENUE BY : SHRI V. VINOD KUMAR DATE OF HEARING 09 .09.2019 DATE OF ORDER 20.09.2019 O R D E R PER SAKTIJIT DEY, J.M. CAPTIONED APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 27 TH FEBRUARY 2017, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1, AURANGABAD, PERTAINING TO THE ASSESSMENT YEAR 2012 13. 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND CARRIES ON BUSINESS AS AUTHORISED DEALER OF ACC CEMENT THROUGH HIS PROPRIET ARY 2 SACHIN SUDHAKAR NAVALE CONCERN M/S. SACHIN TRADERS. THE ASSESSEE IS ALSO ENGAGED IN THE BUSINESS OF MANUFACTURING READY MIX CONCRETE (RMC). FOR THE A SSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 26 TH SEPTEMBER 2012, DECLARING TOTAL INCOME OF ` 17,89,840. A SSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 17 TH MARCH 2015, DETERMIN ING THE TOTAL INCOME AT ` 6,20,01,720. THE VARIATION BETWEEN THE TOTAL INCOME RETURNED AND TOTAL INCOME DETERMINED WAS DUE TO PART DISALLOWANCE OF EXPENDITURE INCURRED UNDER VARIOUS HEADS AND DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 24(A) OF THE ACT . THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE S IN AN APPEAL FILED BEFORE THE FIRST APPELLATE AUTHORITY. THE APPEAL FILED BY THE ASSESSEE WAS DECIDED EX PARTE BY THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS). WHILE DOING SO, HE SUSTAINED THE A DDITION S MADE BY THE ASSESSING OFFICER. 3 . EXPLAINING THE REASON FOR NON APPEARANCE BEFORE LEARNED COMMISSIONER (APPEALS) ON THE DATE OF HEARING , LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THOUGH , ON EARLIER OCCASIONS THE ASSESSEE HAD FILED APPLICATION S SE EKING ADJOURNMENT, HOWEVER, ON THE L AST DATE OF HEARING SINCE THE ASSESSEE WAS OUT OF STATION, HE WAS UNABLE TO EITHER ATTEND THE HEARING OR SEEK ADJOURNMENT. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE NON APPEARANCE BEFORE LEARNED 3 SACHIN SUDHAKAR NAVALE COMMISSIONER ( APPEALS) ON THE DATE OF HEARING OF APPEAL WAS DUE TO BONA FIDE REASON. THUS, HE SUBMITTED , A FAIR OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO CONTEST THE ADDITIONS ON MERITS BEFORE THE LEARNED COMMISSIONER (APPEALS) THROUGH SUPPORTING EVIDENCES. 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , JUSTIFIED THE EX PARTE DISPOSAL OF THE APPEAL DUE TO REPEATED NON APPEARANCE BY THE ASSESSEE, HOWEVER, HE SUBMITTED , A LAST OPPORTUNITY CAN BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE LEARNED COMMISSIO NER (APPEALS). 5 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT APPEARS FROM THE ORDER OF LEARNED COMMISSIONER (APPEALS) , THOUGH , SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSESSEE STARTING FROM 14 TH OCTOBER 2016 TILL THE LAST DATE OF HEARING ON 20 TH FEBRUARY 2017, THE ASSESSEE EITHER DID NOT APPEAR OR SOUGHT ADJOURNMENT. THUS, LEARNED COMMISSIONER (APPEALS) PROCEEDED TO DISPOSE OFF THE APPEAL EX PARTE BY SUSTAINING THE ADDITION S MADE BY THE ASSESSING OFFICER. HOWEVER, AS COULD BE SEEN FROM THE FACTS ON RECORD, THE DISALLOWANCE OF VARIOUS EXPENSES CLAIMED BY THE ASSESSEE ARE BASICALLY FOR THE REASON THAT THE ASSESSEE COULD NOT FURNISH THE SUPPORTING EVIDENCE S TO PROVE THE CLAIM OF EXPENDITURE. SIMILARLY, A PART DISALLOWANCE OF THE DEDUC TION CLAIMED UNDER SECTION 24(A) OF THE ACT WAS DUE TO THE FACT 4 SACHIN SUDHAKAR NAVALE THAT SUCH DEDUCTION WAS CLAIMED ON RENT RECEIVED ON LAND . ADMITTEDLY, THE APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) WAS DECIDED EX PARTE , MEANING THEREBY , THE ASSESSEE COULD NOT CONTEST THE ISSUES IN EFFECTIVE MANNER . CONSIDERING THE ABOVE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PROVE HIS CASE ON MERITS THROUGH PROPER SUPPORTING EVIDENCE. TO FACILITATE THE ABOVE, WE ARE INCLINED TO SET ASIDE THE IMPUG NED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR DE NOVO ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AT THE SAME TIME, WE DIRECT THE ASSESSEE TO EF FECTIVELY RESPOND TO THE NOTICE OF HEARING TO BE ISSUED BY LEARNED COMMISSIONER (APPEALS) AND REPRESENT HIS CASE PROPERLY. WE MAKE IT CLEAR , IN CASE OF ANY FURTHER LAPSE ON THE PART OF THE ASSESSEE IN REPRESENTING HIS CASE, LEARNED COMMISSIONER (APPEALS) WOULD BE AT LIBERTY TO DECIDE TH E APPEAL ON MERITS ON THE BASIS OF MATERIAL ON RECORD AND IN ACCORDANCE WITH LAW. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5 SACHIN SUDHAKAR NAVALE ORDER PRONOUNCED IN THE OPEN C OURT ON 20.09.2019 SD/ - PRAMOD KUMAR VICE PRESIDENT SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 20.09.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI