ABHISHEK ASRANI, MUMBAI V. ITO 22(2)(1), NAVI MUMBAI

ITA 4761/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83719 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 17-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Assessee Lawyers: REEPAL G TRALSHAWALA
• Keywords: Principle of natural justice
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER I.T.A. NO.4761/MUM/2012 (ASSESSMENT YEAR : 2007-08) SHRI ABHISHEK S. ASRANI A-102, SWAMI JAIRAMDAS SOCIETY, R.C. MARG CHEMBUR MUMBAI-400 074 VS. INCOME TAX OFFICER- 22(2)(1) VASHI NAVI MUMBAI. PAN/GIR NO. AHGPA 9878 H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI REEPAL G. TRALSHAWALA DEPARTMENT BY : SHRI ASGHAR ZAIN V.P. DATE OF HEARING : 08.9.2014 DATE OF PRONOUNCEMENT : 08.9.2014 O R D E R PER JOGINDER SINGH, JM : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED EXPARTE ORDER DATED 28-01-2011 OF THE LD. FIRST APPELLATE A UTHORITY BROADLY ON THE GROUNDS AS DETAILED IN THE GROUNDS O F APPEAL. ITA NO.4761M/12 AY: 07-08 2 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI REEPAL G. TRALSHAWALA, LD. COUNSEL FOR THE ASSESSEE AND SHRI ASGHAR ZAIN V.P. LD. DR. THE CRUX OF ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT AN EXPAR TE ORDER HAS BEEN PASSED BY THE LD. CIT(A) AND EVEN THE ASSE SSMENT WAS FRAMED U/S. 144 OF THE INCOME TAX ACT, 1961 (TH E ACT). ON THE OTHER HAND, THE LD. DR CONTENDED THAT THE AS SESSEE DELIBERATELY DID NOT APPEAR BEFORE THE AUTHORITIES. ON A QUESTIONING FROM THE BENCH AS TO WHY THE ASSESSEE D ID NOT FURNISH THE NECESSARY DETAILS BEFORE THE AO OR BEF ORE THE LD. CIT(A), IT WAS CONTENDED THAT THE MOTHER OF THE ASSESSEE EXPIRED AND EVEN THE FATHER WAS NOT FEELING WELL AN D THUS THE ASSESSEE COULD NOT FURNISH THE NECESSARY DETAIL S. THE ASSESSEE HAS FILED A PAPER BOOK AND CLAIMED THAT TH E ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS CLAIM . 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DECLARED INCOME OF RS.5,09,79 2/- IN ITS RETURN FILED ON 31-10-2007 WHICH WAS PROCESSED U/S. ITA NO.4761M/12 AY: 07-08 3 143 (1) OF THE ACT ON 19-03-2009. NOTICES U/S. 143( 2) AND 142(1) ALONGWITH QUESTIONNAIRE WERE ISSUED AND SERV ED UPON THE ASSESSEE. AS PER THE REVENUE THE ASSESSEE NEITHER ATTENDED NOR FURNISHED ANY DETAILS AND FINALLY THE ASSESSMENT WAS FRAMED U/S. 144 OF THE ACT . THE ASS ESSEE FILED APPEAL BEFORE THE LD. CIT(A) ON 19/01/2010 AND THUS ITNS 51 WAS ISSUED AND SERVED UPON THE AO. THE AO A LSO DID NOT FILE ANY OBJECTION IN RESPECT TO STATEMENT OF FACTS FILED BY THE ASSESSEE. AS PER THE REVENUE THE ADDIT ION WAS MADE ON ACCOUNT OF BOOKING AMOUNT RECEIVED AGAINST SHIVSADAN SOCIETY AND ADVANCES RECEIVED AGAINST PLO T. THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) AND U LTIMATELY AN EXPARTE ORDER WAS PASSED. WITHOUT GOING INTO MUC H DELIBERATION AND THE FACTS NARRATED BEFORE US, AND MORE SPECIFICALLY THE MOTHER OF THE ASSESSEE EXPIRED AND THE FATHER WAS ALSO BED-RIDDEN, WE ARE OF THE CONSIDERE D OPINION THAT A SYMPATHETIC APPROACH IS REQUIRED SO THAT THE ASSESSEE MAY BE PROVIDED EFFECTIVE HEARING. EVEN OT HERWISE NO PERSON SHOULD BE CONDEMNED UN-HEARD. THEREFORE, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE WE REMAND THIS APPEAL TO THE FILE OF THE LD. AO FOR FRESH ADJ UDICATION IN ITA NO.4761M/12 AY: 07-08 4 ACCORDANCE WITH LAW FOR WHICH DUE OPPORTUNITY OF HE ARING BE PROVIDED TO THE ASSESSEE. THE LD. AO IS DIRECTED TO CONSIDER THE PAPER BOOK FILED BEFORE US AND EXAMINE THE CLAIM OF THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTE D NOT TO TAKE THE PROCEEDINGS LIGHTLY AND SHALL CO-OPERATE I N EARLY DISPOSAL OF THE MATTER BEFORE THE AO. IF THE ASSESS EE STILL CHOOSES NOT TO APPEAR, THEN THE AO IS FREE TO DECID E THE CASE ON THE BASIS OF MATERIAL AVAILABLE BEFORE HIM. 4. FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON THIS 8 TH DAY OF SEPTEMBER, 2014 . SD/- ( RAJENDRA ) ACCOUNTANT MEMBER SD/- ( JOGINDER SINGH ) JUDICIAL MEMBER MUMBAI; DATED : 08/09/2014 JV. ITA NO.4761M/12 AY: 07-08 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (ASSTT. REGISTRAR) ITAT, MUMBAI