INDUJA TRADERS P. LTD, NAVI MUMBAI V. ITO 9(2)(1), MUMBAI

ITA 4712/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55308 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 15-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 ITA NO. 4712/MUM/210 (ASST YEAR 2006-07) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI J SUDHAKAR REDDY , AM & SHRI VIJAY PAL RAO, JM ITA NO. 4712/MUM/2010 (ASST YEAR 2006-07) M/S INDUJA TRADERS P LTD A-104 RAJ UMANG-II SHIV VALLABHA CROSS ROAD, ASHOKVAN, DAHISAR (E) MUMBAI 68 VS THE INCOME TAX OFFICER WARD 9(2)(1), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAACI 8509D ASSESSEE BY SHRI JITENDRA JAIN REVENUE BY SHRI SANJIV DUTT DT.OF HEARING 15 TH SEPT 2011 DT OF PRONOUNCEMENT 21 ST SEPT 2011 PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 10.3.2010 OF THE CIT(A) FOR THE ASSESSMENT YEAR 200 6-07. 2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE G ROUNDS: I) THE LD CIT(A) ERRED IN LAW AND ON FACTS IN UPHOL DING THE ADDITION OF RS.1265457/- MADE BY THE ASSESSING OFFICER U/S 40(A)(IA). II) THE LD CIT(A) FAILED TO APPRECIATE THAT THE APP ELLANT WAS NOT REQUIRED TO DEDUCT TAX AT SOURCE ON AMOUNTS TOTALLING TO RS. 1265457/- AND THAT AS PER THE PROVISIONS OF LAW, THE ADDITION OF RS. 1265457/- IS UNJUSTIFIED. III THE APPELLANT CONTENDS THAT ADEQUATE OPPORTUNIT Y WAS NOT GIVEN BY THE LD CIT(A) AS WELL AS THE ASSESSING OFFICER TO THE APPELLANT T O REPRESENT IS CASE AND HENCE THE ADDITION IS TOTALLY UNJUSTIFIED.. IV) THE APPELLANT PRAYS THAT THE ASSESSING OFFICER B DIRECTED TO DELETE THE UNJUSTIFIED AND UNWARRANTED ADDITION OF RS. 1265457/- TO THE DE CLARED INCOME. 2 ITA NO. 4712/MUM/210 (ASST YEAR 2006-07) 3 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD AR HAS SUB MITTED THAT THE CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE WITHOU T GIVING PROPER OPPORTUNITY OF HEARING. HE HAS FURTHER POINTED OUT THAT THE ALLEG ED NOTICE ISSUED BY THE CIT(A) WAS NOT RECEIVED BY THE ASSESSEE AND THE ASSESSEE MIG HT HAVE GONE OUT OF STATION AND THEREFORE, FROM THE RECORDS OF THE CIT(A) ITSELF, IT IS CLEAR THAT THE SAID NOTICE WAS NOT SERVED UPON THE ASSESSEE. HE HAS URGED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY OF HEARING TO PRESENT ITS CASE BEF ORE THE CIT(A). 3.1 ON THE OTHER HAND, THE LD DR HAS OPPOSED THE PR AYER OF THE ASSESSEE. 4 AFTER CONSIDERING THE RIVAL CONTENTION AND RELEVA NT MATERIAL ON RECORD, WE FIND THAT THE CIT(A) HAD FIXED THE APPEAL FOR HEAR ING ON 5.3.2010. THE NOTICE ISSUED FOR HEARING ON 5.3.2010 WAS RECEIVED BACK UN-SERVED WITH POSTAL REMARKS UNCLAIMED. CONSEQUENTLY, THE CIT(A), WITHOUT GIV ING FURTHER OPPORTUNITY TO THE ASSESSEE FOR HEARING DECIDED THE APPEAL EX-PARTE VI DE THE IMPUGNED ORDER. 5 HAVING CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE WAS NOT GIVEN PROPER AND EFF ECTIVE OPPORTUNITY OF HEARING BY THE CIT(A) BEFORE DECIDING THE APPEAL OF THE ASSESS EE. WHEN THE NOTICE ISSUED WAS RETURNED BACK WITH THE POSTAL REMARKS AS UNCLAIMED THEN IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSEE DELIBERATELY AVA ILED THE SERVICE OF NOTICE OR REFUSED TO RECIVE FACT REMAINS THAT THE NOTICE WAS NOT SERVED ON THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, WE GRANT ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, THE MATTER IS SET ASIDE TO T HE RECORD OF THE CIT(A) FOR FRESH CONSIDERATION AND ADJUDICATION ON MERIT AFTER GIVIN G ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3 ITA NO. 4712/MUM/210 (ASST YEAR 2006-07) 6 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 21 ST , DAY OF SEPT 2011. SD/- SD/- ( J SUDHAKAR REDDY ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 21 ST SEPT 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI