MOHSIN MOHD ALI NATHANI, MUMBAI V. ITO WD 19(3)(3), MUMBAI

ITA 4810/MUM/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4292 (ITAT-MUMBAI)
• Duration Of Justice: 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , , BEFORE SHRI B.R. MITTAL, JM AND SHRI RAJENDRA, AM ./I.T.A. NO. 4810/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) SHRI MOHSIN MOHD ALI NATHANI, 205, ORVA PHOOLBAI MANOR CHS, 31 ST ROAD, TPS IV, BANDRA (W), MUMBAI-400050 / VS. INCOME TAX OFFICER 1 9 (3)(3), LOWER PAREL, MUMBAI. ./ ./PAN/GIR NO. :ACHIPN1492Q ( ! /APPELLANT ) .. ( ' ! / RESPONDENT ) ! / APPELLANT BY : SHRI HARI S RAHEJA ' ! $ /RESPONDENT BY : SHRI A.C.TEJPAL $ ( / DATE OF HEARING : 10.07.2013 $ ( /DATE OF PRONOUNCEMENT : 10.07.2013 / O R D E R PER B.R.MITTAL JM: THE ASSESSEE HAS FILED THIS APPEAL FOR THE ASSESS MENT YEAR 2009-10 AGAINST THE ORDER OF LD. CIT(A) DATED 2.5.2013 VIDE WHICH THE L D. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BEING TIME BARRED AND ALSO OBSERVING T HAT THE ASSESSEE DELIBERATELY AVOIDED TO APPEAR BEFORE THE AO. 2. THE DEPARTMENT , EARLIER, FILED AN APPLICATION F OR ADJOURNMENT. HOWEVER, AT THE TIME OF HEARING THE LD.DR REQUESTED THAT THE ADJOUR NMENT REQUEST IS NOT PRESS FOR. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE OBSERVE THAT THE AO PASSE D EX-PARTE ASSESSMENT ORDER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT) AS THE ASSESSEE FAILED TO APPEAR BEFORE HIM AND AS SUCH FAILED TO FURNISH THE REQUIS ITE DETAILS. THE AO HAS STATED THAT THE ASSESSEE HAS GIVEN SEVERAL OPPORTUNITIES TO F URNISH THE DETAILS AND CLARIFICATION ON AIR DATA AND INCOME RETURNED. THE LD. CIT(A) HAS A LSO CONFIRMED THE ASSESSMENT ORDER AFTER OBSERVING THAT THE APPEALS FILED BY TH E ASSESSEE IS BARRED BY LIMITATION AND ALSO AFTER OBSERVING THAT THE ASSESSEE DELIBERATEL Y AVOIDED THE FILING OF NEW ADDRESS I.T.A. NO. 4810/MUM/2013 2 BEFORE THE AO. THEREFORE, THE SITUATION OF CHANGE OF ADDRESS CANNOT BE CONSIDERED TO BE A BONAFIDE REASON FOR DELAY IN FILING OF APPEAL . IT IS RELEVANT TO STATE THAT THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) THAT THE A SSESSEE HAD SHIFTED TO NEW RESIDENTIAL ADDRESS AND ALL THE NOTICES AS ALSO ASS ESSMENT ORDER WERE SERVED ON THE OLD ADDRESS LEADING TO DELAY IN FILING THE APPEAL BEFOR E THE FIRST APPELLATE AUTHORITY. IT IS ALSO RELEVANT TO STATE THAT IN THE GROUNDS OF APPEA L THE ASSESSEE HAS STATED THAT THE ASSESSEE CAME TO KNOW THAT THE ASSESSMENT ORDER HAD BEEN PASSED ONLY WHEN HIS BANK ACCOUNTS WERE FREEZED AND HIS MUTUAL FUNDS ATTACHE D. IT IS STATED THAT THE ASSESSEE WAS NOT SERVED WITH ANY NOTICE NOR THE ASSESSMENT O RDER WAS EVER SERVED ON THE ASSESSEE. 4. AT THE TIME OF HEARING, THE LD. AR REITERATED T HE ABOVE FACTS AND SUBMITTED THAT IF THE MATTER IS RESTORED TO THE AO, THE ASSESSEE WILL FURNISH REQUISITE DETAILS AND ALSO CO-OPERATE WITH THE AO TO FRAME ASSESSMENT. THE LD. DR HAS NOT OBJECTED TO THE ABOVE SUBMISSIONS OF THE LD. AR. 5. CONSIDERING THE FACTS OF THE CASE AND IN THE INT EREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MAT TER TO THE AO WITH A DIRECTION TO PASS FRESH ASSESSMENT ORDER AFTER GIVING DUE OPPORT UNITY OF HEARING TO THE ASSESSEE AND CONSIDERING SUCH DOCUMENTS /EVIDENCES AS MAY BE FI LED BEFORE HIM. WE MAY STATE THAT IF THE ASSESSEE FAILS TO CO-OPERATE WITH THE AO AND /OR TO FURNISH THE REQUISITE DETAILS AS MAY BE REQUIRED BY HIM, THE AO WILL BE A T LIBERTY TO FRAME THE ASSESSMENT AFRESH ON THE BASIS OF INFORMATION/EVIDENCES AVAILA BLE BEFORE HIM AND AS PER LAW. 6. IN THE RESULT, GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED AFTER HEARING LD. REPRESENTATIVE OF THE PARTIES IN THE OPEN COURT ON 10TH JULY, 2013 $ / 0 10TH JULY, 2013 $ SD/- SD/- (RAJENDRA) (B.R. MITTAL) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 0 DATED 10/07/2013 . . ./ SRL , SR. PS I.T.A. NO. 4810/MUM/2013 3 !' #' / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. 5 '7 , ( 7 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, 5 ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI