JIGNESH H FADIA, MUMBAI V. ITO 25(3)(4), MUMBAI

ITA 3622/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78655 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 07-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 3622/M/2012 ASSESSMENT YEAR: 2008 - 09 SHRI JIGNESH H FADIA C 504, HARMONY HOMES CHS LTD., ASH OK CHAKRAVARTI ROAD, KANDIVALI (E AST ), MUMBAI 400 101 PAN: AAAPF1971H VS. ITO 25(3)(4) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHARMESH SHAH, A.R. REVENUE BY : SHRI MAURYA PRATAP, D.R. DATE OF HEARING : 07.04 .201 4 DATE OF PRONOUNCEMENT : 07.04.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERR ED TO AS CIT(A)] DATED 09.03.12. 2. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ORDER UNDER APPEAL IS AN EX - PARTE ORDER OF THE LD. CIT (A). HE HAS FURTHER SUBMITTED THAT THE ASSESSEE WAS EARLIER WOR KING UNDER MR. NISHIT V. SHAH, D IRE CTOR OF M/S. DYNAMIC IMPORT AND EXPORT PVT. LTD. THE SAID MR. NISHIT V. SHAH HAD EXPIRED ON 25.04.10 AND THEREAFTER THE ASSESSEE DISCONTINUED HIS JOB WITH HIM. THE ASSESSMENT ORDER IN QUESTION WAS PASSED BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) ON 28.12.12 DETERMINING THE TOTAL INCOME OF THE ASSESSEE ITA NO . 3622/M/2012 SHRI JIGNESH H FADIA 2 AT RS.13,76,357/ - . THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE ASSESSEE WANTED TO PRODUCE CERTAIN DOCUMENTS/EVIDENCES BEFORE THE LD. CIT(A). HOWEVER, HE COULD NOT AR RANGE FOR THE SAME DUE TO NON CO - OPERATION OF THE FAMILY OF SAID MR. NISHIT V. SHAH AFTER HIS DEATH. EVEN THE WIFE OF THE ASSESSEE WAS ALSO ILL AND REMAINED ADMITTED IN HOSPITAL ON NUMBER OF OCCASIONS DURING THE PERIOD AS SHE WAS SUFFERING FROM SERIOUS UT ERUS PROBLEMS. DUE TO THE ABOVE CIRCUMSTANCES, THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE THE LD. CIT(A ) AND THE ABSENCE OF THE ASSESSEE BEFORE THE LD. CIT(A) ON THE DATE OF HEARING WAS NOT INTENTIONAL. THE LD. A.R. HAS THUS PRAYED THAT THE MATTER BE RESTORED TO THE LD. CIT(A) FOR HEARING AFRESH. THE AVERMENTS OF THE ASSESSEE HAVE BEEN DULY SUPPORTED WITH AN AFFIDAVIT OF THE ASSESSEE DATED 27.11.13. ON THE OTHER HAND THE LD. D.R. RELIED UPON THE AUTHORITIES BELOW. 3. WE HAVE CONSIDERED THE SUB MISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES. ADMITTEDLY THE ORDER UNDER APPEAL IS AN EX - PARTE ORDER PASSED BY THE LD. CIT(A). THE ASSESSEE HAS EXPLAINED THE REASONS FOR HIS NON APPEARANCE ON THE DATE OF HEARING BEFORE THE LD. CIT(A). MOREOVER, TH E ASSESSEE WANTED TO RELY UPON CERTAIN ADDITIONAL EVIDENCES. THE ASSESSEE HAS FURTHER PLEADED THAT THOSE ADDITIONAL EVIDENCES WERE NOT AVAILABLE WITH THE ASSESSEE AT TIME OF HEARING OF THE MATTER BY THE LD. CIT(A). SO KEEPING IN VIEW OF THE OVERALL FACT S AND CIRCUMSTANCES OF THE CASE, IN OUR VIEW THE INTEREST OF JUSTICE WILL BE WELL SERVED , IF THE ASSESSEE IS GIVEN A CHANCE TO PRESENT HIS CASE BEFORE THE LD. CIT(A). WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE LD. CIT(A) WILL GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND HE WILL ALSO CONSIDER THE NECESSARY DOCUMENTS/ADDITIONAL EVIDENCES , IF ANY , PRODU CED BY THE ASSESSEE , IN ACCORDANCE WITH LAW. ITA NO . 3622/M/2012 SHRI JIGNESH H FADIA 3 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.04. 201 4 . SD/ - SD/ - ( D. KARUNAKARA RAO ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 07.04. 201 4 . * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) C ONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REG ISTRAR, ITAT, MUMBAI.