AJAY A JOSHI, MUMBAI V. JCIT 14(1),

ITA 4185/MUM/2008

• Counselvise Citation: 418519914 RSA 2008
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-07-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 12-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUBAL
• Assessee Lawyers: LALIT DOSHI
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.4185/MUM /2008 (ASSESSMENT YEAR: 2003-04) AJAY A. JOSHI, PROP. OF GLOBAL WRITING INSTRUMENTS, 5/108, 5 TH FLOOR, PAWAN BAUG, OFF. S.V. ROAD, MALAD (W), MUMBAI -400 064 ....... APPELLANT VS JCIT -24(1), MUMBAI ..... RESPONDENT PAN: AAEPJ 2920 APPELLANT BY: SHRI LALIT DOSHI RESPONDENT BY: SHRI M.R. KUBAL O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE ASSESSEE HAS CHALLENGED ORDER OF THE LD. CIT (A)-26, MUMBAI DATED 18.03.2008 FOR THE A.Y. 2003-0 4. THE ASSESSEE HAS RAISED MULTIPLE GROUNDS ARE AS UNDER:- 1) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN PASSING ORDER DISPOSING OFF THE APPEAL EX PARTE. 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FA ILED TO APPRECIATE THAT APPELLANT WAS PREVENTED BY A REASON ABLE AND SUFFICIENT CAUSE FROM COMPLYING WITH THE NOTICES. ITA 4185/MUM/2008 AJAY A. JOSHI 2 3) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING ADDITION OF RS 5,88,799/- U/S.69C ON GRO UND OF UNEXPLAINED PURCHASES AND PAYMENT. 4) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING ADDITION OF RS 1,18,901/- ON ACCOUNT OF PROFIT ON ABOVE STATED UNEXPLAINED PURCHASES AND PAYMENT. 5) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING DISALLOWANCE OF RS 1,13,554/- ON ACCOUNT OF INFLATED EXPENSES / PURCHASES. 6) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING DISALLOWANCE OF CLAIM OF DEDUCTION U/S.8 0HHC WHEREBY THE ASSESSING OFFICER HAD DETERMINED THE AM OUNT OF DEDUCTION AT RS 9,26,366/- ONLY. 7) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING DISALLOWANCE OF DEPRECIATION OF RS 2,75, 625/- ON TENANCY RIGHTS. 8) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING DISALLOWANCE OF DONATION OF RS 71,600/-. 9) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN CONFIRMING DISALLOWANCE OF RS 24,305/- BEING 10% OF TELEPHONE EXPENSES. 2. WE HAVE HEARD THE PARTIES. THERE IS A DELAY OF 26 DAYS IN FILING THE PRESENT APPEAL, AS NOTED BY THE REGISTRY. THE A SSESSEE HAS FILED THE AFFIDAVIT STATING THAT THE DATE OF RECEIPT OF L D. CIT(A)S ORDER IS WRONGLY MENTIONED. ON THE PERUSAL OF THE REASONS G IVEN IN THE AFFIDAVIT, WE ARE SATISFIED THAT THE APPEAL IS FILE D IN TIME. WE, ACCORDINGLY, ADMIT THE APPEAL FOR HEARING. ITA 4185/MUM/2008 AJAY A. JOSHI 3 3. IN THIS CASE, THE LD. CIT (A) DISPOSED OFF THE APPEAL EX-PARTE. IN THE ORDER, DIFFERENT DATES ARE MENTIONED BY THE LD. CIT (A) TO SHOW THAT NOTICES WERE SENT BY THE RPAD AND AMPLE OPPORT UNITIES WERE GIVEN TO THE ASSESSEE. THE BENCH ASKED THE ASSESSE E WHY HE DID NOT APPEAR BEFORE THE LD. CIT (A). THE ASSESSEE FILED AN AFFIDAVIT IN WHICH HE HAS GIVEN REASONS FOR NON-APPEARANCE ON THE LAST DATE OF THE HEARING BEFORE THE LD. CIT (A). IN THE AFFIDAVIT, IT IS STATED THAT THE LD. CIT (A) SENT THE NOTICES ON THE WRONG ADDRESS, WHIC H WERE RETURNED BY THE POSTAL AUTHORITIES AS UNSERVED. THE ASSESSEE HAS ALSO MENTIONED THE CORRECT ADDRESS IN THE AFFIDAVIT. TH E LD. COUNSEL SUBMITS THAT IN THE INTEREST OF JUSTICE THE ASSESSE E MAY BE GIVEN ONE MORE OPPORTUNITY TO PRESENT THE CASE BEFORE THE LD. CIT (A). 4. WE HAVE ALSO HEARD THE LD. D.R. AND PERUSED THE AFFIDAVIT FILED BY THE ASSESSEE. THOUGH THE LD. CIT (A) HAS GIVEN T HE DETAILS IN RESPECT OF THE NOTICE SENT TO THE ASSESSEE BY RPAD BUT AT THE SAME TIME HE HAS ALSO OBSERVED THAT SOME OF THE NOTICES WERE RETURNED UN- SERVED. IN FACT, IT WAS DUTY OF THE ASSESSEE TO INF ORM THE CORRECT ADDRESS TO THE LD. CIT (A) AT THE SAME TIME, WE ARE OF THE OPINION THAT THE PRAYER OF THE ASSESSEE NEEDS TO BE ACCEPTED IN THE INTEREST OF JUSTICE BY GIVING HIM ONE MORE OPPORTUNITY TO REMAI N PRESENT BEFORE THE LD. CIT (A) AND PRESENT HIS APPEAL. WE, ACCORD INGLY, SET ASIDE THE ORDER OF THE LD. CIT (A) AND REMAND THE ENTIRE MATT ER BACK TO THE FILE OF THE LD. CIT (A) WITH THE DIRECTION TO DISPOSE OF THE SAME AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE AS SESSEE IS DIRECTED TO FILE THE CORRECT ADDRESS, SUO MOTU BEFORE THE LD. CIT (A) FOR PROPER SERVICE OF THE NOTICE WITHIN ONE MONTH FROM THE DAT E OF RECEIPT OF THIS ORDER. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD. CIT (A0 FOR EARLIER DISPOSAL OF THE PRESENT APPEAL AND SHOU LD NOT SEEK UNNECESSARY ADJOURNMENT. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ITA 4185/MUM/2008 AJAY A. JOSHI 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 5TH JULY 2011. SD/- SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE : 15TH JULY 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)XXIV, MUMBAI. 4) THE CIT-24, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 4185/MUM/2008 AJAY A. JOSHI 5 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 12.07.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 13.07.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER