DEVRISHI CORPORATION, MUMBAI V. ITO 15(3)(2), MUMBAI

ITA 4896/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4139 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 08-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 24-07-2014
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JHADHAV
• Assessee Lawyers: B V JHAVERI
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA , A M & SHRI AMARJIT SINGH , J M ./ ITA NO S . 4894 &4896 / MUM/20 1 4 ( / ASSESSMENT YEAR : 20 0 7 - 08 & 2008 - 09 ) M/S DEVRISHI CORPORATION, 302, KAPADIA INDUSTRIAL ESTATE, A.K.ROAD, NEAR DOMINOS PIZZA, CHAKALA, ANDHERI(EAST), MUMBAI - 400093 VS. ITO - 15(3)(2), MUMBAI ./ ./ PAN/GIR NO. : A A DFD 8990 R ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI B.V.JHAVERI /REVENUE BY : SHRI VISHWAS JHADHAV / DATE OF HEARING : 08 / 02 /201 6 / DATE OF PRONOUNCEMENT : 08/02 /2016 / O R D E R PER R.C.SHARMA ( A .M.) : TH ESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI, FOR THE ASSESSMENT YEARS 2007 - 08 & 2008 - 09, IN MATTER OF ORDER PASSED U/S.144 OF THE I.T.ACT. 2. THESE APPEALS ARE BARRED BY 19 DAYS. CONS IDERING THE REASONS STATED IN THE APPLICATION FILED BY THE LD. AR FOR CONDONATION OF DELAY, WE CONDONE THE DELAY OF 19 DAYS IN FILING BOTH THE APPEALS AND CONSEQUENTLY THEY ARE HEARD ON MERITS. 3. IN THESE APPEALS, THE ASSESSEE IS AGGRIEVED BY ORDER OF C IT(A) FOR UPHOLDING THE ADDITION SIMPLY ON THE PLEA THAT ASSESSEE HAS NOT SHOWN AS TO WHY THE NOTICE U/S.143(2) WAS NOT COMPLIED WITH. ITA NO. 4894 &4896 /1 4 2 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT THE ASSESSEE A PARTNERSHIP FIRM HAS SHIFTED THEIR OFFICE FROM 110, MAHAVIR INDUSTRIAL ESTATE AREA, OFF M AHAKALI CAVES ROAD, ANDHERI (E), MUMBAI - 400093 TO 216, ATLANTA ESTATE, MULUND LINK ROAD, GOREGAON, MUMBAI - 400063 AND AGAIN FROM THERE HE SHIFTED HIS OFFICE TO CURREN T ADDRESS AT 302, KAPADIA INDL. ESTA TE, A.K.ROAD, NEAR DOMINOZ PIZZA, CHAKALA, A NDHERI(E), MUMBAI - 400093 FROM WHERE HE IS PRESENTLY OPERATING. DURING THIS TRANSIT PERIOD THEY DID NOT RECEIVE ANY NOTI C E U/S.142 NOR ANY SHOW CA U SE FROM ASSESSING OFFICER. IT WAS ONLY WHEN THEIR BANK ACCOUNT WAS ATTACHED THAT THEY CAME TO KNOW ABOUT THE INCOME LIABILITY, THEREAFTER THE UNDERSIGNED APPROACHED THE ASSESSING OFFICER AND COLLECTED PERSONALLY THE ASSESS MENT ORDER PASSED U/S.144. WITHOUT BRINGING ANY MATERIAL ON RECORD TO THE EFFECT THAT ASSESSEE WAS I N RECEIPT OF ANY NOTICE FROM THE AO U/S.142, THE CIT(A) UPHELD THE ADDITION SO MADE BY THE AO. WE DO NOT FIND ANY JUSTIFICATION IN THE ORDER OF CIT(A), INSOFAR AS ASSESSEE COULD NOT APPEAR BEFORE THE AO BECAUSE OF NON - RECEIPT OF ANY NOTICE U/S.142. IT IS A LSO PERTINENT TO MENTION HERE THAT THE CIT(A) HAS NOT PASSED ANY ORDER ON MERIT WHEREAS AS PER PROVISIONS OF SECTION 250 SUB - SECTION 6, THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETER MINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. WITHOUT GOING INTO THE MERIT OF THE ADDITION THE CIT(A) DISMISSED ASSESSEES APPEAL IN PLACE OF RESTORING THE SAME TO THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND MATTER IS RESTOR ED BACK TO THE FILE OF ITA NO. 4894 &4896 /1 4 3 AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. FACTS AND CIRCUMSTANCES IN BOTH THE YEARS UNDER CONSIDERATION ARE SAME, FOLLOWING THE REASONING GIVEN HEREINABOVE, WE RESTORE BOTH THE APPEALS TO THE FILE OF AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 6 . IN THE RESULT, BOTH APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08/02 /2016 SD/ - SD/ - ( AMARJIT SINGH ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 08/02 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER , / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE R ESPONDENT. 3. ( ) / THE CIT(A) , MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//