SANTOSH GHANSHYAMDAS BIYANI, MUMBAI V. ASST CIT CIR 4(2), MUMBAI

ITA 4617/MUM/2012

• Counselvise Citation: 461719914 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T ROUMUAN PAITE
• Assessee Lawyers: VISHWAS MEHANDALE
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Non compliance
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 4617/MUM/2012 ASSESSMENT YEAR: 2009-10 SANTOSH GHANSHYAMDAS BIYANI 103-B, HARE KRISHNA APARTMENTS, P.M. ROAD, VILE PARLE-EAST, MUMBAI- 400 057 PAN: AAIPB 5664 K VS. ASST CIT CIR 4(2) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VISHWAS MEHANDALE REVENUE BY : SHRI T. ROUMUAN PAITE DATE OF HEARING : 13.08.2013 DATE OF PRONOUNCEMENT : 13.08.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A) -8, MUMBAI DATED 16.04.2012 FOR THE ASSESSMENT YEAR 200 9-10. 2. IN THIS APPEAL, THE ASSESSEE HAD RAISED VARIOUS GROUNDS WHICH RELATE TO THE ORDER PASSED BY THE LD.CIT(A) CONFIRMING THE ADDITIONS MA DE BY THE AO IN THE EX- PARTE ASSESSMENT ORDER PASSED U/S 144 OF THE ACT. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL ENGA GED IN SHARE BUSINESS, DURING THE YEAR UNDER CONSIDERATION, HAD FILED THE E-RETURN OF INCOME DECLARING A TOTAL LOSS OF RS.30,60,950/-. THE AO IN THE ASSESSMENT FRAMED, PA SSED AN EX PARTE ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT, WHERE HE HAD MADE TH E VARIOUS IMPUGNED ADDITIONS. THE SAID EX-PARTE ORDER HAD BEEN PASSED BY THE AO AS TH E ASSESSEE HAD NOT DULY COMPLIED WITH STATUTORY NOTICES. ON APPEAL, THE LD.CIT(A) WH ILE NOT ACCEPTING THE ADDITIONAL EVIDENCES FILED BEFORE HIM CONFIRMED VARIOUS ADDITI ONS MADE BY THE AO. AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE US . ITA NO. 4617/MUM/2012 SANTOSH GHANSHYAMDAS BIYANI ASSESSMENT YEAR: 2009-10 2 4. BEFORE US, THE LD. AR HAS FILED AN APPLICATION F OR ADMISSION OF ADDITIONAL EVIDENCE IN THE FORM OF PAPER BOOK ALONG WITH THE AFFIDAVIT SWORN BY THE ASSESSEE DATED 10.08.2013 STATING THE REASONS FOR NOT FILING THE D ETAILS BEFORE THE AO. ON THE OTHER HAND, THE LD. DR HAS POINTED OUT THE NON-COOPERATION OF T HE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHICH LED TO PASSING OF THE EX PARTE AS SESSMENT ORDER U/S 144 AND CONSEQUENT REJECTION OF ADMISSION OF ADDITIONAL EVI DENCE ON APPEAL BY THE LD.CIT(A). 5. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, THOUGH THE REASONS GIVEN IN THE AFFIDAVIT FILED BY THE ASSESSE E ARE NOT COMPLETELY CONVINCING US FOR THE ASSESSEES NON COMPLIANCES OF THE NOTICES BY TH E AO, HAVING DUE REGARD TO THE PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE OPINION THAT IT WILL BE JUST AND PROPER TO SET ASIDE THE ENTIRE ASSESSMENT BACK TO THE FILE OF THE AO FO R DECIDING THE ISSUES AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE PLACING ALL THE MATERIAL TO SUBSTANTIATE HIS CLAIM. CONSIDERING THE FACT THAT T HE REASONS CITED BY THE ASSESSEE IN THE AFFIDAVIT ARE NOT CONVINCING, AS AGREED BY THE LD. AR, WE IMPOSE A COST OF RS.10,000/- ON THE ASSESSEE TO BE PAID TO THE REVENUE. AFTER PRODU CING THE RECEIPT FOR THE PAYMENT OF THE SAID COST, THE AO WILL HEAR THE MATTER AFRESH I N THE AFORESAID MANNER. WE DIRECT AND ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF AUGUST, 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 13.08.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, M UMBAI.