JITENDRA KHICHA, MUMBAI V. IT5O WD 2(1), MUMBAI

ITA 3637/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62267 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 18-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 05-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.3637/MUM/2011 : ASST. YEAR 2007-2008 SHRI JITENDRA KHICHA 001, SAI PLAZA, GROUND FLOOR SHANTI PARK, MIRA ROAD (EAST) MUMBAI 401 107. PAN : AGWPK0817F. THE INCOME TAX OFFICER WARD 2(1) THANE. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : --- NONE --- RESPONDENT BY : SHRI D.S.SUNDER SINGH DATE OF HEARING : 18.04.2012 DATE OF PRONOUNCEMENT : 25.04.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 30.12.2010, IN RELATION TO THE ASSESSMENT YEAR 2007-2008. 2. THE FIRST GROUND IS AGAINST THE PASSING OF EX PARTE ORDER BY THE LEARNED CIT(A) WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE, DESPITE NOTICE. IT IS OBSERVED THAT THE A SSESSEE WAS SUBJECTED TO SURVEY U/S 133A. IN THE ABSENCE OF ANY CO-OPERATION FROM T HE SIDE OF THE ASSESSEE, THE A.O. FRAMED THE ASSESSMENT U/S 144 ON TOTAL INCOME OF ` 27,51,940. AGAIN THERE WAS ABSENCE OF THE ASSESSEE BEFORE THE LEARNED CIT( A), WHO DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE GROUNDS RAISED BEFORE HIM. IN OUR CONSIDERED OPINION THE CO URSE OF ACTION ADOPTED BY THE LEARNED CIT(A) IS ERRONEOUS INASMUCH AS HE HAS NO P OWER TO DISMISS THE APPEAL FILED BY THE ASSESSEE IN LIMINE. EVEN IF THE ASSESSEE DOES NOT APPEAR AND HE HAS ITA NO.3637/MUM/2011 SHRI JITENDRA KHICHA. 2 TO PASS EX PARTE ORDER, SUCH ORDER CAN ONLY BE ON MERITS. NO POWER VESTS WITH THE LEARNED CIT(A) TO DISMISS THE APPEAL OF THE AS SESSEE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE. SINCE AN INCORRE CT PATH HAS BEEN FOLLOWED BY THE LEARNED CIT(A), WE ARE OF THE CONSIDERED OPINIO N THAT IT WILL BE IN THE FITNESS OF THING IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE. WE ORDER ACCORDINGLY AND DIRECT HIM TO DE CIDE THE APPEAL AFRESH ON MERITS AS PER LAW AFTER ALLOWING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 25 TH DAY OF APRIL, 2012. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 25 TH APRIL, 2012. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - II, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.