SACHIN JOSHI, MUMBAI V. ACIT , CIRCLE - 26(3), MUMBAI

ITA 3872/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7252 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 31-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 3872 /MUM/201 9 ( / ASSESSMENT YEAR: 20 13 - 14 ) MR. SACHIN JOSHI 5 TH FLOOR, JMJ HOUSE, NEAR DELPHI BUILDING, ORCHARD AVENUE, HIRANANDANI ESTATE ROAD, MUMBAI - 400076 . / VS. ACIT CIRLCE 26(3) MUMBAI. ./ ./ PAN/GIR NO. : ADZPJ8537D ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 22/ 0 7/ 201 9 /DATE OF PRONOUNCEMENT: 24 /07/ 201 9 / O R D E R PER AMARJI T SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 13 . 03 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 38 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 13 - 1 4 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS GIVEN ONLY ONE OPPORTUNITY TO CURE THE DEFECTS N THE APPEAL E - FILED WITH HER AND THE APPELLANT SUBMITS THAT SHE OUGHT TO H AVE REVENUE BY : SHRI CHAUD HARY ARUN KUMAR SINGH (SR. AR) ASSESSEE BY: SHRI RAJIV KHANDELWAL ITA NO. 3872 / M/201 9 A.Y.20 13 - 14 2 GIVEN REASONABLE OPPORTUNITY TO CURE THE DEFECTS MENTIONED BY HER HENCE, THE IMPUGNED EX PARTE ORDER IS UNWARRANTED. THE APPELLANT CRAVES LEAVE TO A DD TO, ALTER OR AMEND THE AFORESTATED GROUND OF APPEAL. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY T HE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY WITHOUT HEARING THE ASSESSEE, THERE FORE, THE MATTER OF CONTROVERSY IS LIABLE TO BE RESTORED BEFORE THE CIT(A) IN ACCORDANCE WITH LAW. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. COPY OF ORDER DATED 13.03.2019 IS ON THE FILE WHICH SPE AKS THAT THE CIT(A) HAS PASSED THE ORDER IN THE ABSENCE OF THE ASSESSEE/LD. REPRESENTATIVE OF THE ASSESSEE. MOREOVER, WE ALSO FIND THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED ON TECHNICAL GROUNDS AS THE ASSESSEE HAS FAIL ED TO UPLOAD THE ORDER U/S 14 3(3 ) FOR THE A.Y 2013 - 14, DEMAND NOTICE, CHALLAN NOTICE, CHALLAN FOR PAYMENT OF APPEAL FEES ETC, THEREFORE, THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED ON THE BASIS OF TECHNICAL GROUND AND WITHOUT DECIDING THE CASE ON MERITS. THE ORDER NOWHERE SEEMS TO J USTIFIABLE. 4 . FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 5 . THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND ITA NO. 3872 / M/201 9 A.Y.20 13 - 14 3 RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 24 /07/ 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBA I; DATED : 24 /07/ 2019 . VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI