RAM AKBAL R. NISHAD, MUMBAI V. ITO 17(3)(4), MUMBAI

ITA 4665/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1674 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D,MUMBAI BEFORE SHRI D. MANMOHAN (VICE-PRESIDENT) & SHRI RAJANDRA SINGH (ACCOUNTANT MEMBER) I.T.A.NO.4665/MUM/2009 (A.Y.2005-06 ) MR. RAM AKBAL R.NISHAD, R.NO.31, 1 ST FLOOR, RAMNIVAS BLDG., K.K.MARG, JACOB CIRCLE,MUMBAI-11. PAN: ACBPN3781C VS. INCOME-TAX OFFICER-17(3)(4), R.NO.615, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400 012. APPELLANT RESPONDENT APPELLANT BY NONE. RESPONDENT BY SHRI T. T. JACOB. O R D E R PER D. MANMOHAN, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 12-06- 2009 PASSED BY THE CIT(A)XXVII, MUMBAI, AND IT PERT AINS TO ASSTT.YEAR 2005-06. 2. ON THE DATE FIXED FOR HEARING, THE REPRESENTATIV E OF THE ASSESSEE APPEARED BEFORE US TO SEEK ADJOURNMENT ON THE GROUND THAT TH E PERSON HANDLING THE ASSESSEES INCOME-TAX MATTERS IS OTHERWISE BUSY. HO WEVER, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE PROCEED TO DISPOSE OF THE APPEAL EX- PARTE, QUA THE ASSESSEE. 3. WE HAVE HEARD LD. D.R. IN THIS REGARD AND CAREF ULLY PERUSED THE RECORD. ADMITTEDLY, THE ASSESSMENT ORDER WAS PASSED BY INVO KING THE PROVISIONS OF SEC. 144 OF THE ACT, WHICH WAS CHALLENGED BY THE ASSESSE E BEFORE THE CIT(A) CONTENDING, INTER ALIA, THAT THE ASSESSEE WAS NOT G IVEN A PROPER OPPORTUNITY OF BEING HEARD BEFORE THE AO. THERE WAS DELAY IN FILIN G THE APPEAL. THE LD. CIT(A) APPEARS TO HAVE ISSUED A NOTICE CALLING UPON THE AS SESSEE TO FURNISH EXPLANATION FOR THE DELAY AND ALSO TO EXPLAIN HIS CASE ON MERIT . THE ASSESSEE APPEARS TO HAVE ITA 4665/M/09 RAM AKBAL R.NISHAD 2 FILED A CONDONATION PETITION. BASED UPON THE REASON S GIVEN IN THE SAID PETITION, THE DELAY IN FILING THE APPEAL WAS HELD TO BE ON AC COUNT OF REASONABLE CAUSE AND ACCORDINGLY THE APPEAL WAS ADMITTED. HOWEVER, WITHO UT SPECIFYING AS TO HOW MANY OPPORTUNITIES WERE GIVEN TO THE ASSESSEE, THE APPEAL WAS DISMISSED SUMMARARILY. 4. AGAINST THE ORDER OF THE LD. CIT(A), THE ASSESSE E IS IN APPEAL BEFORE US CONTENDING, INTER ALIA, THAT THE LD. CIT(A) ERRED I N PASSING THE APPELLATE ORDER EX- PARTE. THE LD. D.R. WAS NOT ABLE TO FURNISH DETAILS WITH REGARD TO THE DATE OF ISSUANCE OF NOTICE BY THE LD. CIT(A). UNDER THESE C IRCUMSTANCES, IT IS ASSUMED THAT THE EX-PARTE ORDER WAS PASSED BY THE LD. CIT(A ) IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE, I.E., WITHOUT GIVING THE ASSESS EE A REASONABLE OPPORTUNITY OF BEING HEARD. IN THE INTERESTS OF JUSTICE, WE, THERE FORE, SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT HIM TO GIVE THE ASSESSEE A REASON ABLE OPPORTUNITY OF BEING HEARD AND DISPOSE OF THE MATTER IN ACCORDANCE WITH LAW. SINCE THE MATTER IS SET ASIDE TO THE FILE OF THE CIT(A), IT IS NOT NECESSAR Y FOR US TO CONSIDER THE OTHER ISSUES ON MERIT. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 31ST DA Y OF MAY,2010. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE-PRESIDENT MUMBAI: 2ND JUNE , 2010. NG: COPY TO : ITA 4665/M/09 RAM AKBAL R.NISHAD 3 1. ASSESSEE. 2.DEPARTMENT. 3 CIT(A)-XXVII,,MUMBAI. 4 CIT,CITY-17,MUMBAI. 5.DR,D BENCH,MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. ITA 4665/M/09 RAM AKBAL R.NISHAD 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 31-05-2010 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 02-06-2010 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/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER