SMT. FARAH FAROOQ SHAIKH, MUMBAI V. ITO 21(1), MUMBAI

ITA 3873/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1814 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 31-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Opportunity of being heard; Set aside
• Section: 201; 48; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 3873 /MUM/2019 ASSESSMENT Y EAR: 2012 - 13 SMT. FARAH FAROOQ SHAIKH, 220/224, M.L. WADI, DHARAVI MAIN ROAD, MAHIM (E), MUMBAI - 400017 PAN: BARPS8799A VS. INCOME TAX OFFICER, WARD 21(1)(5) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMITA VERMA (DR) DATE OF HEARING: 15/06 /20 21 DATE OF PRONOUNCEMENT: 25 / 06 /202 1 O R D E R PER S AKTIJIT DEY , JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 26.03.2019 OF L EARNED COMMISS IONER OF INCOME T AX (APPEALS) 48 , MUMBAI FOR THE ASSESSMENT YEAR 2012 - 13. 2. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE EX - PAR TE DISPOSAL OF THE APPEA L BY LEARNED COMMISSIONER (APPEALS) WITHOUT GRANTING PROPER OPPORTUNITY OF BEING HEARD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN MANUFACTURING OF BOXES. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HER RETURN OF INCOM E ON 29.09.2012 DECLARING TOTAL INCOME OF RS. 6,66,080/ - . ASSESSMENT IN CASE O F THE ASSESSEE WAS COMPLETED UNDER SECTION 143 (3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS. 12,88,397/ - AFTER MAKING THE FOLLOWING ADDITIONS: 1. DEEMED RENT RECEIVED : RS. 34, 300/ - 2 ITA NO. 3873 / MUM/2019 ASSESSMENT YEAR: 201 2 - 1 3 2. SUNDRY CREDITORS : RS. 1,07,348/ - 3. CASH DEPOSITS : RS. 4,73,900/ - . 4. AGAINST THE ASSESSMENT ORDER SO PASSED , THE ASSESSEE PR EFERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). HOWEVER, BY T HE IMPUGNED ORDER, LEARNED COMMISSIONER (APPEALS ) HAS CONFIRMED THE ADDITIONS MADE BY THE AO WHILE DISMISSING THE APPEAL . 5. W HEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO THE REPRESENT THE CASE. HOWEVER, CONSIDERING TH E NATURE OF DISPUTE, I P ROCEED TO DISPOSE O F THE APPEAL EX - PARTE QUA TH E ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND BASED ON MATERIAL ON RECORD. 6. I HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED MATERIALS ON RECORD. I T IS EVIDENT, LEARN ED COMMISSIONER (APPEALS) HAS DECIDED THE APPEAL EX - PARTE. THOUGH , IN THE BODY OF T HE IMPUGNED APPELLATE ORDER, LEARNED COMMISSION ER (APPEALS) HAS MENTIONED ABOUT THE VARIOUS DATES ON WHICH T HE APPEAL WAS FIXED FOR HEARING, H OWEVER, IT IS NOTICED THAT ON M ANY INSTANCES THE HEARING NOTICES RETURNED BACK UN - SERVED. THE LAST NOTICE ISSUED BY LEARNED COMMISSIONER (APPEALS) FIXING THE DATE OF HEARING ON 25.03.2019, T HOUGH , WAS SERVED ON THE ASSESSEE, HOWEVER, THE ASSESSEE SOUGHT ADJOURNMENT. IT IS EVIDENT , REJEC TING ASSESSE ES REQUEST FOR ADJOURNMENT, LEARNED COMMISSIONER ( APPEALS ) HAS PROCEEDED TO DISPOSE OF THE APPEAL EX - PARTE . WHILE DOING SO, LEARNED COMMISSIONER (APPEALS) HAS MORE OR LE SS DISMISSED THE APPEAL FOR NON PROSECUTION , RATHER THAN DECIDING THE ISSU ES ON MERITS. THOUGH , IN PARAGRAPH 4.4 OF THE APPELLATE ORDER, LEARNED COMMISSIONER (APPEALS) HAS MADE A PASSING OBSERVATION REG ARDING THE MERITS OF THE ISSUES, HOWEVER, HE HAS NOT PASSED A REASONED OR SPEAKING ORDER ON THE ISSUES RAISED. THUS, IN MY VIEW, THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) DESERVES TO BE SET ASIDE. ACCORDINGLY, I DO SO. LEARNED COM MISSIONER (APPEALS) IS DIRECTED DECIDE THE APPEAL AFRESH AFTER DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN CASE, THE ASSE SSEE IS 3 ITA NO. 3873 / MUM/2019 ASSESSMENT YEAR: 201 2 - 1 3 STILL RECALCITRANT AND DOES NOT RESPOND TO THE NOTICE TO BE ISSUED, LEARNED COMMISSIONER (APPEALS) WOULD BE AT LIBERTY TO DISPOSE OF THE APPEAL IN ABSENCE OF THE ASSESSEE BASED ON MATERI ALS ON RECORD. HOWEVER, LEARNED COMMISSIONER (APPEALS) MUST P ASS A WELL - REASONED AND SPEAKING ORDER DEALING WITH ALL THE ISSUES RAISED BY THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE , 2021 . SD/ - ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 25 / 06 /202 1 ALINDRA, PS / 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 . //TRUE COPY// / BY ORDE R, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI