DEEPAK N. DHIMAR, MUMBAI V. ITO WD 24(1)(4), MUMBAI

ITA 3631/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62456 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 16-05-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 05-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: RAKEH KOTHARI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R S SYAL, AM & SHRI VIJAY PAL RAO, JM ITA NO. 3631/MUM/2011 (ASSESSMENT YEAR 2006-07 ) DEEPAK N DHIMAR 321/C KHOKAVWALA COPOUND OFF LINK ROAD, CHINCHOLI BUNDER MALAD (W)\MUMBAI 64 VS THE INCOME TAX OFFICER WARD 24(1)(4), MUMBAI (APPELLANT ) (RESPONDENT) PAN NO. AABPD4663M ASSESSEE BY SHRI RAKEH KOTHARI REVENUE BY SH C G K NAIR DT.OF HEARING 16 TH MAY 2012 DT OF PRONOUNCEMENT 25 TH , MAY 2012 ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.2.2011 OF THE CIT(A) FOR THE AY 2006-07. 2 THE ASSESSEE HAS RAISED THE ONLY GROUND AS UNDER: I) THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN PASSING AN EXPARTE ORDER WITHOUT THE APPELLANT BEING HEARD. 2. THE LD COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING DISALLOWANCE OF INTEREST EXPENSE OF ` ` 1,89,759/- INCURRED ON LOANS TAKEN FOR THE PURPOSES OF BUSINESS AND UTILIZED FOR EARNING TAX ABLE INCOME IN DEEP INDUSTRIES ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW. 3. THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING DISALLOWANCE OF INTEREST EXPENSES OF ` 1,84,213/- C LAIMED BY THE APPELLANT AGAINST INTEREST INCOME OF ` ` 2,31,672/- TAXED UNDER THE HEAD INCOME FROM OTHER SOURCES ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW. DEEPAK N DHIMAR ITA NO. 3631/MUM/2011 2 3 THE ASSESSMENT IN THIS CASE WAS COMPLETED BY THE ASSESSING OFFICER ON 8.12.2008 WHEREBY ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT ` 7,11,320/- AS AGAINST THE INCOME RETURNED BY THE ASSESSEE AT ` 2,31,672/-. THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE ASSESSING OFFIC ER BEFORE THE CIT(A). THE CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE AS NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE CIT(A) HAS ME NTIONED IN PARA 2 OF THE IMPUGNED ORDER THAT MANY NOTICES WERE ISSUED BUT WE RE RETURNED UN-SERVED BY THE POSTAL AUTHORITIES. THEREFORE, THE APPEAL OF THE AS SESSEE WAS DECIDED EX-PARTE. 4.1 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT SI NCE THE ASSESSEE HAS NOT RECEIVED ANY NOTICE OF HEARING BEFORE THE CIT(A); T HEREFORE, THE NON APPEARANCE BEFORE THE CIT(A) IS NEITHER WILFUL NOR DELIBERATE; BUT BECAUSE OF NON RECEIPT OF NOTICE OF HEARING. ACCORDINGLY, IT IS PLEADED THAT SINCE THE CIT(A) HAS NOT HEARD THE ASSESSEE; THE ASSESSEE MAY BE GIVEN A PROPER OPPORT UNITY FOR HEARING. 4.1 THE LD DR, ON THE OTHER HAND VEHEMENTLY OPPOSED THE REQUEST OF THE ASSESSEE. 5 IT IS UNDISPUTED, AS RECORDED BY THE CIT(A) THAT NONE OF THE NOTICES WAS SERVED TO THE ASSESSEE; THEREFORE, THE ASSESSEE WAS DEPRIVED OF AN OPPORTUNITY OF HEARING BEFORE DECIDING THE APPEAL BY THE CIT(A). 5.1 THE PRINCIPLES OF NATURAL JUSTICE DEMANDS A PRO PER HEARING OF THE PARTIES BEFORE THE GRIEVANCE OF THE PARTIES ARE DECIDED. TH E APPEAL IS A MATERIAL RIGHT OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE , WE SET ASIDE THE ORDER OF THE CIT(A) DEEPAK N DHIMAR ITA NO. 3631/MUM/2011 3 AND REMAND THE MATTER TO HIS RECORD FOR DECIDING TH E SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 25 TH , DAY OF MAY 2012 SD/ SD/- ( R S SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 25 TH ,MAY 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI