SURESHKUMAR K. DHAMIJA, THANE V. ITO WD 3(3), THANE

ITA 4221/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8533 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.4221/MUM/2014 ASSESSMENT YEAR: 2007-08 SURESHKUMAR K. DHAMIJA, FLAT NO.121, BUILDING NO.3, VIJAY ENCLARE (12 TH FLOOR), WAGBIL NAKA, G.B. ROAD, THANE (W)-400615 / VS. INCOME TAX OFFICER-3(3) ROOM NO.8, 6 TH FLOOR, B-WING, WAGLE ESTATE, THANE (W)-400604 ( !'# $ /ASSESSEE) ( / REVENUE) PAN. NO . AACPD6073G % & $ ' / DATE OF HEARING : 31/01/2017 & $ ' / DATE OF ORDER: 31/01/2017 !'# $ ! / ASSESSEE BY SHRI M. SUBRAMANIAN ! / REVENUE BY MISS. ANUPAMA SINGLA-DR ITA NO.4221/MUM/2014 SURESH KUMAR K. DHAMIJA 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY AN EX-PARTE IMPUGNED ORDER DATED 18/01/2013 OF THE LD. FIRST APPELLATE A UTHORITY, THANE, ON THE GROUND THAT THE ASSESSMENT FRAMED U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) I S INVALID AND FURTHER PARTLY UPHOLDING THE ADDITION MADE IN T HE ASSESSMENT ORDER THAT TOO WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD AND WITHOUT APPRECIATING THE FACTS FULLY, HOLDING THAT THE ADDITION MADE OF RS.4 ,13,641/-, BEING THE PROFIT ESTIMATED AT THE RATE OF 8% OF THE TOTAL RECEIPT OF THE YEAR IS IN ORDER, IGNORING TO ADJUST RS.3,78,000/-, ASSESSED AS TOTAL INCOME, PROCESSED U/S 143(1) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI M. SUBRAMANIAN, ADVANCED ARGUMEN TS, WHICH IS IDENTICAL TO THE GROUND RAISED BY CONTENDI NG THAT THE ASSESSEE HAS ALREADY DECLARED RS.3,78,000/- IN HIS RETURN OF INCOME, WHICH WAS NOT CONSIDERED AND FURT HER PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE . IT WAS ALSO CONTENDED THAT DUE TO CHANGE IN ADDRESS, THE A SSESSEE COULD NOT GET LETTER FROM THE OFFICE OF THE LD. COM MISSIONER OF INCOME TAX (APPEAL) AND THUS, COULD NOT FILE THE NECESSARY DETAILS, CONSEQUENTLY, AGAIN EX-PARTE ORD ER WAS ITA NO.4221/MUM/2014 SURESH KUMAR K. DHAMIJA 3 PASSED. ON THE OTHER HAND, MISS. ANUPAMA SINGLA, L D. DR, DEFENDED THE ADDITION. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT GOING INTO MUCH DELIBERATION, WE FIND THAT THE ASSESSMENT ORDE R WAS PASSED U/S 144 OF THE ACT BY THE LD. ASSESSING OFFI CER AND DUE TO CHANGE IN ADDRESS, AS CLAIMED BY THE ASSESSE E, NO COMMUNICATION WAS RECEIVED FROM THE OFFICE OF THE F IRST APPELLATE AUTHORITY AND THUS AT BOTH STAGES, EX-PAR TE ORDER WAS PASSED. BEFORE US, THE LD. COUNSEL FOR THE ASS ESSEE ALSO TOOK THE PLEA THAT THE AMOUNT OF RS.3,78,000/- HAS ALREADY BEEN DECLARED IN THE RETURN OF INCOME, WHICH COULD NOT BE CONSIDERED. IN VIEW OF THIS EXPLANATION, WE ARE OF THE VIEW THAT THE VERY BASIS OF TAXATION IS THAT ONLY DUE TA XES HAS TO BE LEVIED/COLLECTED, THEREFORE, WE REMAND THIS APPE AL TO THE FILE OF THE LD. ASSESSING OFFICER TO DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH NECESSARY EVIDENCE, BEFORE THE LD. ASSESSING OFFICE R, TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE BE GIVEN OPPOR TUNITY OF BEING HEARD. HOWEVER, KEEPING IN VIEW, THE FACTUAL MATRIX, THE ASSESSEE IS ALSO DIRECTED TO COOPERATE FOR THE EARLY DISPOSAL OF THE APPEAL AND SHALL APPEAR BEFORE THE LD. ASSESSING OFFICER WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. THE LD. ASSESSING OFFICER IS AT LIBERTY TO A DJUDICATE THE APPEAL OF THE ASSESSEE ON A MUTUALLY PRE-DECIDED DA TE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES ONLY. ITA NO.4221/MUM/2014 SURESH KUMAR K. DHAMIJA 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 31/01/2017. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED : 31/01/2017 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI, 5. 34 .$! , 0 +' ! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. ! / BY ORDER, /3+$ .$ //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI