MOHAMED REZA KABUL, MUMBAI V. JT CIT RG 16(3), MUMBAI

ITA 3508/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0539 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 08-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GORADIASR
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -JBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND RAM LAL NEGI,JUDICIAL MEMBER ./I.T.A./3508/MUM/2015, /ASSESSMENT YEAR: 2010-11 MR. MOHAMMED REZA KABUL PLOT NO.78A, 2 ND FLOOR TURNER ROAD, BANDRA (W) MUMBAI-400 050. PAN:AACPK 6324 P VS. JT. CIT, RANGE-11 (3) AAYAKAR BHAVAN, M.K. ROAD MUMBAI. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: MS. ARJU GORADIA-SR.DR ASSESSEE BY: SHRI VIPUL JOSHI / DATE OF HEARING: 05.04.2017 / DATE OF PRONOUNCEMENT: 24.05.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) / PER RAJENDRA, AM - CHALLENGING THE ORDER DATED 27.2.2015 OF CIT (APPEA LS)-7, MUMBAI, THE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE, AN INDIVIDUAL FILED H IS RETURN OF INCOME ON 22.9.2010, DECLARING TOTAL INCOME AT RS.2.30 CRORE. THE ASSESSING OFFICE R COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 145/144 OF THE ACT ON 28.3.2013, DETERMINING HIS INCOME AT RS.2.90 CRORES. 2.VIDE HIS LETTER DATED 4.6.2015, THE ASSESSEE HAD MADE AN APPLICATION UNDER RULE 29 OF THE ITAT RULES, 1963 TO ACCEPT ADDITIONAL EVIDENCES. IN HIS APPLICATION, IT IS MENTIONED THAT THE APPEAL WAS FILED BEFORE THE FAA WHEN HE WAS OUT OF INDIA, THAT HE HAD AUTHORIZED HIS CHARTERED ACCOUNTANT TO FILE THE APPEAL, THAT HE HA D FILED PAPER BOOK ALONG WITH WRITTEN SUBMISSIONS BEFORE THE FAA, THAT ON 24.09.2014, THE FAA STATED THAT THE APPEAL WAS NOT SIGNED BY THE ASSESSEE AND HENCE NOT ADMISSIBLE, TH AT LATER ON, THE SUCCESSOR FAA ISSUED A NOTICE FOR HEARING, THAT ON 30.01.2015, CA OF THE A SSESSEE ALONG WITH THE AUTHORISED REPRESENTATIVE (AR) APPEARED BEFORE THE FAA, THAT A T THAT TIME, NO ISSUE WAS RAISED ABOUT THE LETTER OF AUTHORITY INSPITE OF THE SPECIFIC NOTING IN THE ORDER SHEET, THAT APPEAL WAS PARTLY HEARD ON MERIT ON 30.01.2015, THAT ON 27.2.2015, THE APPE AL WAS PARTLY HEARD, THAT ON THAT DATE ALSO THERE WAS NO DISCUSSION ABOUT THE ADMISSIBILITY OF THE APPEAL, THAT IS WHY HIS ORDER DATED 27.2.2015, WAS RECEIVED ON 13.4.2015, THE FAA DISMI SSED THE APPEAL HOLDING THAT SAME WAS NOT SIGNED BY THE ASSESSEE HIMSELF. IT WAS FURTHER STATED THAT THE ASSESSEE HAD NO OCCASION TO SAY ANYTHING ABOUT THE ADMISSIBILITY OF THE APPEAL OR TO PLACE ON RECORD COPIES OF HIS PASSPORT 3508/M/15(10-11) MOHAMED REZA KABUL 2 TO SHOW THAT HE WAS OUT OF INDIA DURING THE MATERIA L PERIOD,THAT IN THE INTEREST OF NATURAL JUSTICE, THE ADDITIONAL EVIDENCES PRODUCED BY HIM S HOULD BE TAKEN INTO CONSIDERATION. 3. BEFORE US, THE AUTHORISED REPRESENTATIVE (AR) OF TH E ASSESEE REITERATED THE ARGUMENTS THAT ARE PART OF APPLICATION FILED BY THE ASSESSEE UNDER RULE 29 OF THE ITAT RULES. HE FURTHER STATED EX-PARTE ORDER PASSED BY THE AO AND REJECTIO N OF BOOK RESULTS WAS AGAINST THE PRINCIPLES OF NATURAL JUSTICE,THAT THERE WAS NO OPP ORTUNITY TO PLEAD HIS CASE BEFORE ANY OF THE AUTHORITIES. THE DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED ADDITION OF ADDITIONAL EVIDENCES AND STATED THAT FAA HAD RIGHTLY REJECTED APPEAL FIL ED BY THE ASSESSEE. 4. WE FIND THAT THE ASSESSEE WAS NOT IN INDIA, THAT HE HAD LEFT INDIA ON 17.04.2013 AND RETURNED ON 30.04.2013 (PAGES 37 TO 39) OF THE PAPER BOOK. W E FURTHER FIND THAT THE FAA ON 28.8.2014 HAD PARTLY HEARD THE APPEAL AND HAD ADJOURNED IT TO 24.09.2014, THAT ON 30.01.2015 HIS SUCCESSOR MENTIONED THAT THE MAIN ISSUE IN THE APPE AL WAS ON ACCOUNT OF CHANGE OF METHOD OF ACCOUNTING . CHRONOLOGY OF EVENTS CLEARLY SHOW THAT THE CLAIM MA DE BY THE ASSESSEE IN THE APPLICATION IS FACTUALLY CORRECT. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES O F THE CASE, WE ARE OF THE OPINION THAT FAA SHOULD HAVE DECIDED APPEAL ON MERITS OR SHOULD HAVE POINTED OUT THE DEFECTS DURING THE FIRST HEARING OF APPEAL.THE ASSESSEE HAD SHOWN A REASONAB LE CAUSE FOR NOT SIGNING THE APPEAL, THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE RESTO RING THE MATTER TO THE FILE OF THE FAA FOR FRESH ADJUDICATION.HE IS DIRECTED TO AFFORD REASONABLE OP PORTUNITY OF HEARING TO THE ASSESSEE, EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE IN PART. AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS AL LOWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH , MAY, 2017. 2017 SD/- SD/- ( / RAM LAL NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 24 .05.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR J BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.