ANURADHA K. KAMATH, MUMBAI V. ACIT RG. 19(1),[EARLIER ACIT, RG. 16(2)], MUMBAI

ITA 3734/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2684 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MOHANDA S
• Assessee Lawyers: HARDIK MISTRY
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, J UDICIAL MEMBER ITA NO .3734 /MUM/2015 (A.Y.: 2003 - 04 ) MRS. ANURADHA K. KAMATH, 7, SHANKAR SHETH MANSION, 296A, TARDEO ROAD, MUMBAI 400 007 VS. THE ASST. COMMISSIONER OF INCOME TAX, RANGE - 19(1), MATRU MANDIR, MUMBAI - 7 [EARLIER ASST. COMMISSIONER OF INCOME TAX RANGE - 16(2)] PAN: AAGPK 2660Q APPELLANT .. RESPONDENT ITA NO .3735/MUM/2015 (A.Y.:2003 - 04 ) MR. KRISHNA V. KAMATH, 7, SHANKAR SHETH MANSION, 296A, TARDEO ROAD , MUMBAI 400 007 VS. THE ASST. COMMISSIONER OF INCOME TAX, RANGE - 19(1), MATRU MANDIR, MUMBAI - 7 [EARLIER ASST. COMMISSIONER OF INCOME TAX RANGE - 16(2)] PAN:AAHPK 2669L APPELLANT .. RESPONDENT APPELLANT BY .. SHRI HARDIK MISTRY, AR RESPONDENT BY .. S HRI K. MOHANDAS, DR DATE OF HEARING 26 - 07 - 2016 DATE OF PRONOUNCEMENT 26 - 07 - 2016 O R D E R PER MAHAVIR SINGH , JM : THESE APPEAL S BY THE TWO DIFFERENT ASSESSEE S ARE ARISING OU T OF THE COMMON ORDER OF THE CIT (A) - 30, MUMBAI PASSED IN APPEAL NO. CIT ( A) - 30/ACIT 19(2)344/2014 - 15 AND NO.CIT (A) - 30/ACIT19 (1)/343/2014 - 15 DATED 27 - 03 - 2015. IN BOTH THE CASES, A SSESSMENT S WERE FRAMED BY THE ACIT, CIRCLE - 16(2), MUMBAI FOR ASSESSMENT YEAR 2003 - 04 VIDE HIS ORDER DATED 17 - 03 - 2006 P ASSED U/S 144 OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE (ACT). 2. AT THE OUTSET, IT IS NOTICED THAT THE AS SESSEE HAS RAISED COMMON GROUNDS IN BOTH THESE APPEALS REGARDING FRAMING OF ASSESSMENT U/S 144 OF THE ACT I.E. EX - PARTE ITA NO. 3734& 3735 /MUM/20 1 5 2 ASSESSMENT AND COMPLETING THE SAME WIT HOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN BOTH THE APPEALS GROUNDS RAISED ARE IDENTICALLY WORDED, HENCE, THE GROUNDS RAISED IN ONE OF THE APPEALS ARE REPRODUCED HEREIN BELOW: - 1) THE LEARNED ASSESSING OFFICER [THE ASST. COMMISSIONER OF INCOME TAX, RANGE 19(2) (2), MUMBAI] HAS ERRED IN COMPLETING THE ASSESSMENT U/S 144 OF THE INCOME TAX ACT WITHOUT AFFORDING THE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT AND LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30 HAS FURTHER ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 3. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSMENT FRAMED BY THE AO IS U/S 144 OF THE ACT AND THAT ALSO EX - PARTE BASED ON THE MATERIALS AVAILABLE ON RECORD, WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. I HAVE FOUND FROM THE VERY ORDER OF THE CIT (A) THAT IT IS CLEAR THAT NOTICE WAS SERVED ON THE ASSESSEE ON 09 - 12 - 2004 FIXING THE APPEAL ON 25 - 11 - 2004 AN D ANOTHER NOTICE SERVED ON 28 - 02 - 2006 FIXING THE DATE FOR ASSESSMENT ON 24 - 02 - 2006. IT MEANS THE SERVICE OF THE NOTICE IS AFTER THE DATE FIXED. IT MEANS THAT THERE IS NO PROPER OPPORTUNITY OF BEING HEARD. THE LEARNED COUN SEL FOR THE ASSESSEE ARGUED FOR SETTING ASIDE THE ASSESSMENT AND REMITTING THE MATTER BACK TO THE AO IN BOTH THE CASES. THE LEARNED DR FAIRLY ADMITTED THAT THE MATTER MAY BE SENT BACK TO THE AO. 4. IN VIEW OF THE ABOVE , I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRAMING FRESH ASSESSMENT AFTER ALLOWING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 26 /07 / 201 6 . SD/ - ( MAHAVIR SINGH ) JUDICIAL MEMBER MUMBAI , DATED 26 /7 / 201 6 LAKSHMIKANTA DEKA/SR.PS ITA NO. 3734& 3735 /MUM/20 1 5 3 COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI DATE INITIAL DICTATION PAD A TTACHED WITH THE DRAFT ORDER YES 1. DRAFT DICTATED ON 26 - 07 - 16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27 - 07 - 16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT ( A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//