BIPIN M GANDHI, MUMBAI V. ITO 24(1)(1), MUMBAI

ITA 3665/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8091 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-01-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATBIR SINGH
• Assessee Lawyers: JIGNESH R SHAH
• Keywords: Principle of natural justice; Set aside
• Section: 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI RAJENDRA SINGH(AM) ITA NO.3665/M/2010 ASSESSMENT YEAR 2006-07 MR. BIPIN M. GANDHI THE ITO 24(1)(1), PRATYAKSHA KAR BHAVAN 402, BIPIN BUILDING 5 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA(E) 4 TH FLOOR, LINKING ROAD C-13, MUMBAI 400 051. SANTACRUZ (WEST) MUMBAI 400 054. PAN : AABPG 9859 N APPELLANT RESPONDENT ASSESSEE BY : SHRI JIGNESH R.SHAH REVENUE BY : SHRI SATBIR SINGH O R D E R PER RAJENDRA SINGH (AM) THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 30.3.2010 OF CIT(A) FOR THE ASSESSMENT YEAR 2006-07 . THE ASSESSEE IN THIS APPEAL HAD DISPUTED THE ORDER OF CIT UNDER SECTION 263 BOTH ON MERIT AND ON THE GROUND OF LACK OF ADEQUATE OPPORTUNITY. 2. I FIRST TAKE UP THE ISSUE RELATING TO LACK OF PR OPER OPPORTUNITY WHICH VIOLATES THE PRINCIPLES OF NATURAL JUSTICE. THE LEA RNED AR FOR THE ASSESSEE SUBMITTED THAT THE CIT HAD ISSUED THE SHOW-CAUSE NO TICE DATED 19.3.2010 AND THE CASE HAD BEEN FIXED FOR HEARING ON 26.3.2010. T HOUGH THE CIT HAS MENTIONED THAT THE SHOW-CAUSE NOTICE WAS SERVED ON 19.3.2010 ITSELF THE ASSESSEE HAD NOT RECEIVED THE NOTICE OF HEARING. IT WAS SUBMITTED THAT MAY BE 2 THE NOTICE HAD BEEN SENT AT THE OLD ADDRESS. HOWEVE R THE LEARNED AR ADMITTED THAT THE ASSESSEE HAD NOT INTIMATED THE CHANGE OF N EW ADDRESS TO THE DEPARTMENT. IN ANY CASE IT WAS ALSO SUBMITTED THAT THE ORDER HAD BEEN PASSED ON 30.3.2010 AND THE ASSESSEE DID NOT HAVE ADEQUATE TIME FOR RESPONDING TO THE VARIOUS POINTS MADE BY CIT. IT WAS ACCORDINGLY REQUESTED THAT THE ASSESSEE SHOULD BE GIVEN PROPER OPPORTUNITY OF HEARING. THE LEARNED DR PLACED RELIANCE ON THE ORDER OF CIT. 3. I HAVE PERUSED THE RECORDS AND CONSIDERED THE MA TTER CAREFULLY. THE DISPUTE RAISED IN THIS GROUND IS REGARDING LACK OF PROPER OPPORTUNITY BY CIT. I FIND THAT THE CIT HAD ISSUED THE NOTICE UNDER SECTI ON 263 ONLY ON 19.3.2010 AND THE CASE HAVE BEEN FIXED FOR HEARING ON 26.3.20 10. THE ORDER WAS PASSED ON 30.3.2010. UNDER THESE CIRCUMSTANCES I AM CONVIN CED BY THE PLEA OF THE ASSESSEE THAT THERE WAS NO ADEQUATE OPPORTUNITY OF HEARING. I AGREE THAT THE ASSESSEE IS REQUIRED TO BE GIVEN PROPER OPPORTUNITY OF HEARING IN THE MATTER. BOTH THE PARTIES HAD NO OBJECTION IF THE MATTER WAS SENT BACK TO THE CIT FOR PASSING A FRESH ORDER AFTER HEARING THE ASSESSEE. I THEREFORE SET ASIDE THE ORDER OF CIT AND RESTORE THE MATTER BACK TO HIM FOR PASSI NG A FRESH ORDER AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. SI NCE THE ORDER HAS BEEN SET ASIDE AND THE MATTER RESTORED BACK TO THE CIT IT IS NOT NECESSARY TO GO THROUGH THE OTHER GROUNDS RAISED BY THE ASSESSEE. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 3 5. THE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES TODAY I.E. 17.03.2011. SD/- (RAJENDRA SINGH) ACCOUNTANT MEMBER DATE : 17.03.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR SMC BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ALK