LATE VINOD VIRCHAND JAKHARIYA THROUGH L.H SHRI KEYUR VINOD LAKHARIYA, MUMBAI V. ITO WD 1(4), MUMBAI

ITA 3590/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3812 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 21-02-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 05-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Keywords: Principle of natural justice

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI . . , / BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND , SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.3590/MUM/2011 ! ! ! ! ' ' ' ' / ASSESSMENT YEAR 2004-05 LATE VINOD VIRCHAND JAKHARIYA 4/404, SARGAM CHS, SP GUJJAR MARG, NEELAM NAGAR, PHASE-II, MULUND (E), MU7MBAI 400 081. ! ! ! ! / VS. THE ITO , WARD 1(4), KALYAN. # ./ $ ./ PAN/GIR NO. : ADDPJ 1147K ( #% / APPELLANT ) .. ( &'#% / RESPONDENT ) #% ( / APPELLANT BY: SHRI DHARMESH SHAH &'#% ) ( / RESPONDENT BY : SHRI OM PRAKASH MEENA ! ) * / DATE OF HEARING : 10/04/2013 +,' ) * / DATE OF PRONOUNCEMENT : 10/04/2013 - / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-1, THANE DATED 31/01/2011 FOR ASSESSMENT YEAR 2004- 05. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE R EAD AS UNDER: . / ITA NO.3590/MUM/2011 2 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HA S ERRED IN LAW AND FACTS IN PASSING ORDER U/S. 250 OF THE ACT DISMISSI NG THE APPEAL FILED BY THE APPELLANT. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN PASSING ORDER IN THE NAME OF THE APPELLANT WITHOUT APPRECIATING THAT THE APPELLANT HAD EXPIRED DURING THE PENDENCY OF THE APPELLATE PROCEEDINGS AND WITHOUT BRINGING THE LEGAL REPRESEN TATIVES ON RECORD. 3. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN PASSING ORDER WITHOUT COMPLYING WITH THE P RINCIPLES OF NATURAL JUSTICE. 4. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN NOT RECORDING THE SATISFACTION FOR INITIAT ION OF PENALTY U/S. 271(1(C) OF THE ACT IN ACCORDANCE WITH THE LAW. 5. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN LEVYING PENALTY OF RS.2,72,525/- U/S. 271( 1)(C) OF THE ACT. 2. SO FAR AS IT RELATE TO GROUND NO.2 & 3, LD. AR OF THE ASSESSEE FILED BEFORE US A LETTER DATED 15/1/2009 SUBMITTED TO CIT(A), THANE WITH REFERENCE TO THE APPEAL FILED BY THE ASSESSEE BEFORE CIT(A), IN WHICH IT WAS MEN TIONED THAT ASSESSEE HAS SINCE EXPIRED ON 6/10/2008 AND THE SAID LETTER IS WRITTEN BY SHRI KEYUR VINOD JAKHARIYA, SON AND LEGAL HEIR OF THE ASSESSEE. A COPY OF THE SAID LETTER WAS ALSO GIVEN TO LD. DR. ALONG WITH THE SAID LETTER DEATH CERTIFICATE WAS AL SO SUBMITTED. IT IS ALSO SEEN THAT LD.CIT(A) HAS PASSED APPELLATE ORDER IN THE NAME OF THE DECEASED. IT IS ALSO THE GRIEVANCE OF THE LD. AR THAT THOUGH LD. CIT(A) HAS MENTIONED IN HIS ORDER THAT EVIDENCES WERE SUBMITTED BY THE ASSESSEE BUT WHILE DECIDING THE APPEAL HE DID NOT REFER TO THOSE EVIDENCES. 3. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE ARE OF THE OPINION THAT THE ORDER PASSED BY THE LD. CIT(A) IS A DEFECT IVE ORDER AS IT HAS BEEN PASSED IN THE NAME OF THE DECEASED DESPITE KNOWING THAT ASSESSE E IS DECEASED. THEREFORE, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AS PER LAW AFT ER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY TO THE LEGAL HEIR OF THE ASSESSEE TO M AKE SUBMISSIONS AND FILE EVIDENCES TO SUPPORT HIS CASE. THE LD. CIT(A) SHOULD ALSO TAK E INTO CONSIDERATION THE EXISTING MATERIAL ON REGARD. WITH THESE DIRECTIONS WE RESTO RE THIS APPEAL TO THE FILE OF LD. . / ITA NO.3590/MUM/2011 3 CIT(A). ACCORDINGLY, THE APPEAL FILED BY THE ASSES SEE IS TREATED AS ALLOWED IN THE MANNER AFORESAID. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEEE IS TREATED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2013. - ) +,' . /!0 10/04/2013 , ) 1 2 SD/- SD/- ( / RAJENDRA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /! DATED 10/ 04/2013 - - - - ) )) ) &*45 &*45 &*45 &*45 65'* 65'* 65'* 65'* / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &'#% / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 581 &*! , , / DR, ITAT, MUMBAI 6. 19 : / GUARD FILE. -! -! -! -! / BY ORDER, '5* &* //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ! . ./ VM , SR. PS