ASHOK SHETTY, MUMBAI V. ITO 6(1)(2), MUMBAI

ITA 4896/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75552 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-02-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 20-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: AJAY NAGPAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 4896/MUM/2011 ( / ASSESSMENT YEAR: 2004-05) ASHOK SHETTY ISMAIL MANSION, DR. AMBEDKAR ROAD, DADAR (EAST), MUMBAI-400 014 / VS. INCOME TAX OFFICER-6(1)(2), AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 ./ ./PAN/GIR NO. AAOPS 0085 K ( /APPELLANT ) : ( !' / RESPONDENT ) # $ / APPELLANT BY : SHRI AJAY NAGPAL !' # $ / RESPONDENT BY : SHRI M. L. PERUMAL % &'( # )* / DATE OF HEARING : 18.02.2014 +,- # )* / DATE OF PRONOUNCEMENT : 18.02.2014 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE DIS MISSAL OF HIS APPEAL, CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 19 61 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2004-05, BY THE COMMISSIONER OF INCOME TAX (APPEALS)-14, MUMBAI (CIT(A) FOR SHORT) VIDE HIS ORDER DATED 22 .03.2011. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, IN PURSUANCE TO HIS GROUND NO.1 CLAIMING NON-GRANT OF FAIR AND REASONABLE OPPORTUNITY BY THE FIRST APPELLATE AUTHO RITY, THAT THE LD. CIT(A) HAS, THOUGH DECIDED HIS CASE ON MERITS, DONE SO EX PARTE . THE NON-ATTENDANCE BEFORE HIM WAS NOT 2 ITA NO. 4896/MUM/2011 (A.Y. 2004-05) ASHOK SHETTY VS. ITO DELIBERATE INASMUCH AS THE ASSESSEE HAD NOT RECEIVE D ANY OF THE NOTICES OF HEARING, SO THAT HE HAD, THEREFORE, ERRED IN PROCEEDING EX PARTE . 3. WE HAVE HEARD THE PARTIES IN RESPECT OF THE ASSE SSEES GROUND # 1. THE LD. AR HAS MADE A CATEGORICAL AVERMENT BEFORE US THAT NONE OF THE NOTICES OF HEARING, DETAILED AT PARA # 3 OF THE IMPUGNED ORDER, HAD IN FACT BEEN RECEIVE D BY THE ASSESSEE, AND WHICH EXPLAINS HIS NON-ATTENDANCE AND, THUS, THE ADMITTED NON-REPR ESENTATION BEFORE THE LD. CIT(A). WE OBSERVE THAT THOUGH HIS ORDER MENTIONS OF HAVING IS SUED SEVERAL NOTICES, IT DOES NOT SPEAK OF SERVICE OF ANY ONE OF THEM, SO THAT THE ASSESSEE S PLEA, MADE PER A STATEMENT AT BAR, CANNOT BE RUBBISHED OR TAKEN LIGHTLY. UNDER THE CIRCUMSTANCES, WE THEREFORE, ALLOWING THE ASSESSEES SAID GROUND, ONLY CONSIDER IT FIT AND PROPER, AS WELL AS IN THE INTER EST OF JUSTICE, THAT THE APPEAL IS RESTORED BACK TO THE FILE OF THE LD.CIT(A), SO AS TO ALLOW T HE ASSESSEE A REASONABLE OPPORTUNITY TO PRESENT ITS CASE BEFORE HIM. THE LD. CIT(A), SHALL DECIDE THE ISSUE/S ARISING ON MERITS IN ACCORDANCE WITH LAW, AND AFTER HEARING BOTH THE PAR TIES. FURTHER, AND ONLY WITH A VIEW TO ENSURE THE ASSESSEES CO-OPERATION IN THE SET ASIDE PROCEEDINGS, WHICH THE LD. AR ASSURED US OF, WE FIX THE DATE OF HEARING BEFORE THE FIRST APPELLATE AUTHORITY IN THE MATTER ON 21.04.2014 . THE LD. CIT(A) MAY EITHER HEAR AND DECIDE THE APP EAL ON THAT DATE OR MAY ADJOURN THE SAME TO ANY FUTURE DATE. NEEDLESS TO AD D, NON-ATTENDANCE ON THE SAID DATE BEFORE HIM WOULD INVITE AN ADVERSE INFERENCE INASMU CH AS WE HAVE PROCEEDED SOLELY BY GIVING CREDENCE TO THE PLEA BY THE LD. AR AS MADE B EFORE US, WITH OF COURSE NO REBUTTAL BY THE REVENUE, AND WITH A SOLE VIEW TO ENSURE OBSERVA NCE OF THE PRINCIPLES OF NATURAL JUSTICE. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. /-)0 &12/) # 3# 456 7 8 ' 9 ) # ) :; ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 18, 2014 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER % ( MUMBAI; <& DATED : 18.02.2014 3 ITA NO. 4896/MUM/2011 (A.Y. 2004-05) ASHOK SHETTY VS. ITO '.&../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % =) ( ) / THE CIT(A) 4. % =) / CIT - CONCERNED 5. @'AB !)&C1 , * C1- , % ( / DR, ITAT, MUMBAI 6. BD2 E( / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , % ( / ITAT, MUMBAI