SULTAN P. CHARANIA, MUMBAI V. ITO WD 13(3)(1), MUMBAI

ITA 4920/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0788 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: JAYESH DHABARIA
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . . , , , BEFORE SHRI A.D. JAIN , JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 4920/MUM/2013 ( / ASSESSMENT YEAR : 2005 - 06 MR. SULTAN P. CHARANIA, 10A, BALMORAL HALL, 7, MOUNT MARY ROAD, BANDRA (W), MUMBAI - 400 050 / VS. THE ITO, WARD 13(3)(1), MUMBAI ./ ./ PAN/GIR NO. : AAEPC 4931G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI JAYESH DHABARIA / RESPONDENT BY : SHRI PAWAN KUMAR BEERLA / DATE OF HEARING : 06 . 0 7 .2015 / DATE OF PRONOUNCEMENT : 06 .0 7 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 2 4, MUMBAI DT. 2 5 . 3 .201 3 PERTAINING TO ASSESSMENT YEAR 200 5 - 0 6 . 2. THE SHORT GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) DID NOT CONSIDER THE FACT THAT THE ASSESSEE HAD GO T NO OPPORTUNITY OF BEING HEARD ITA. NO. 4920/M/2013 2 IN THE MATTER RELATING TO THE PENALTY PROCEEDINGS FOR THE YEAR UNDER CONSIDERATION. 3. THE GRIEVANCE OF THE ASSESSEE REVOLVES AROUND THE LEVY OF OF PENALTY OF RS. 3,92,468/ - U/S. 271(1)(C) OF THE ACT. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSING OFFICER HAS ISSUED PENALTY NOTICE U/S. 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2007 - 08 ALTHOUGH THE CORRECT ASSESSMENT YEAR IS 2005 - 06. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE LD. CIT(A). IT WAS ALSO CONTENDED BEFORE THE LD. CIT(A) THAT THE INCOME TAX PRACTITIONER WHO WAS HANDLING THE INCOME TAX MATTER HAS NOT ADVISED THE ASSESSEE PROPER L Y AND THEREFORE TIMELY ACTION COULD NOT BE TAKEN. 5. THIS CONTENTION OF THE ASSESSEE WAS NOT PROPER L Y AP PRECIATED BY THE LD. CIT(A) WHO CONFIRMED THE LEVY OF PENALTY BY INTERPRETING THE PROVISIONS OF SEC. 271(1)(C) OF THE ACT. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT NO NOTICE U/S. 271(1)(C) OF THE ACT HAS EVER BEEN ISSUED FOR A.Y. 2005 - 0 6. ALL NOTICES TO SHOW CAUSE HAVE BEEN ISSUED FOR A.Y. 2007 - 08 WHICH HAD ONLY HELPED IN CREATING MORE CONFUSION TO THE ASSESSEE ADDED WITH IMPROPER ADVICE OF THE ITP. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE CONTENTIONS OF THE LD. COUNSEL. WE HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE PLEA TAKEN BEFORE US WAS ALSO TAKEN BEFORE THE FIRST APPELLATE AUTHORITY THOUGH NOT CONSIDERED. IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH SIDES, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ITA. NO. 4920/M/2013 3 AO IS DIRECTED TO ONCE AGAIN GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PUT FORTH THE CASE PROPERLY. THE AO SHALL DECIDE THE LEVY OF PENALTY AFRESH. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. OR DER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 6 TH JU LY , 2015 SD/ - SD/ - ( A.D. JAIN ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 6 TH JU LY , 2015 . . ./ RJ , SR. PS / 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// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI