M/S- R.S. BUILDERS&DEVELOPERS, MUMBAI V. DCIT, WARD-28(2), MUMBAI

ITA 4161/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1242 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Assessee Lawyers: KHUSIRAM JADHAWANI
• Keywords: Non compliance; Non passing of speaking order; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 4161 /MUM. /201 9 ( ASSESSMENT YEAR : 20 13 14 ) M/S. R.S. BUILDERS & DEVELOPERS FLAT NO614, GREAT EASTERN GALLERIA SECTOR 4, NERUL, NAVI MUMBAI 400 706 PAN AAFFR1578K . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE 2 8 ( 2 ), MUMBAI . RESPONDENT ASSESSEE BY : SHRI KHUSIRAM JADHAWANI REVENUE BY : S HRI SANJAY J. SETHI DATE OF HEARING 08 .1 2 .2020 DATE OF ORDER 14.12.2020 O R D E R CAPTIONED APPEAL HAS BEEN FILED BY T H E ASSESSEE CHALLENGING THE ORDER DATED 11 TH APRIL 2019, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 26 , MUMBAI, FOR THE ASSESSMENT YEAR 20 13 1 4 . 2. IN GROUND NO.1, THE ASSESSEE HAS CHALLENGED THE EX PARTE DISPOSAL OF THE APPEAL BY LEARNED COMMISSIONER (APPEALS) . WHEREAS, IN GROUND NO.2 THE ASSESSEE HAS CHALLENGED THE ADDITION OF NOTIONAL RENTAL INCOME AMOUNTING TO ` 6,46,800. 2 M/S. R.S. BUILDERS & DEVELOPERS 3. BRIEF FACTS ARE, THE ASSESSEE , A PARTNERSHIP FIRM , IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 27 TH SEPTEMBER 2013 DECLARING TOTAL INCOME OF ` 28,96,170. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER COMP UTED NOTIONAL RENT ON UNSOLD STOCK OF FLATS AND ADDED BACK AN AMOUNT OF ` 6,46,000, AFTER ALLO WING DEDUCTION UNDER SECTION 24 OF THE ACT. 4. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, DUE TO NON COMPLIANCE BY THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) DISPOSED OFF THE APPEAL EX PARTE BY DISMISSING IT. 5. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS), IT APP EARS THAT SINCE THE ASSESS EE DID NOT APPEAR ON THE DATE THE APPEAL WAS FIXED FOR HEARING , HE PROCEEDED TO DECIDE THE APPEAL EX PARTE AND WHILE DOING SO, HE DISMISSED THE APPEAL. ON A READING OF THE CONCLUSION OF LEARNED COMMISSIONER (APPEALS) IN PARA 5 OF HIS ORDER, I FIND THAT IT IS CRYPTIC AND NON SPEAKING ORDER . THIS COULD BE DUE TO THE REASON OF NON APPEARANCE BY THE ASSESSEE. HOWEVER, BEFORE ME, LEANED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NON APPEARANCE BY THE ASSESSEE WAS NOT DELIBERATE BUT DUE TO NON RECEIPT OF HEARING 3 M/S. R.S. BUILDERS & DEVELOPERS NOTICE. WITHOUT ENTERING INTO THE CONTROVERSY AS TO FOR WHOSE FAULT THE APP E AL WAS DECIDED EX PARTE, I AM OF THE VIEW THAT THE INTEREST OF JUSTICE WOULD BE BEST SERVED IF THE ASSESSEE IS GIVEN AN OPPORTUNITY TO EXPLAIN ITS CASE B EFORE THE FIRST APPELLATE AUTHORITY WHICH COULD NOT BE DONE DUE TO EX PARTE DISPOSAL OF THE APPEAL. ACCORDINGLY, I SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . FURTHER, THE ASSESSEE IS DIRECTED TO CO OPERATE IN FINALIZING THE PROCEEDINGS BY APPEARING BEFORE THE FIRST APPELLATE AUTHORITY. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.12.2020 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.12.2020 4 M/S. R.S. BUILDERS & DEVELOPERS COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI