BHAVIK KAMLESH SHAH, MUMBAI V. INCOME TAX OFFICER, WARD-15(2)(3), MUMBAI

ITA 4956/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5813 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MARRAPU NAVEEN
• Assessee Lawyers: N M PORWAL
• Keywords: Set aside
• Section: 201; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE HONBLE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND HONBLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO.4956 /MUM/201 7 ASSESSMENT YEAR: 2009 - 10 BHAVIKA KAMLESH SHAH, B - 402, PLOT NO. 140, ROAD NO. 9, NAVKAR CHS, JAWAHAR NAGAR, GOREGAON (W), MUMBAI - 40062 PAN: AWPPS4116G VS. INCOME TAX OFFICER, WARD 15(2)(3) BANDRA, MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.M. PORWAL REVENUE BY : SHRI MARRAPU NAVEEN (DR) DATE OF HEARING : 15 .11.2018 DATE OF PRONOUNCEMENT : 05 .1 2 .201 8 O R D E R PER SANDEEP GOSAIN , JM: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE CIT(A) - 42, MUMBAI DATED 11.04 .201 7 FOR THE A.Y 2009 - 10 , WHICH IN ITSELF DIRECTED AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER (FOR SHORT A.O ) UNDER SEC. 144 R.W.S 147 OF THE ACT . 2. FROM THE RECORDS WE NOTICED THAT THE ORDER OF ASSESSMENT IN THIS CASE WAS PASSED ON 18.03.2014 , HOWEVER REFERRED APPEAL BEFORE THE LD. CIT(A) AGAINST THE ORDER OF ASSESSMENT WAS FIL ED WITH A DELAY OF 81 DAYS. THE ASSESSEE ALSO CLAIMED THAT THE DELAY IN FILING APPEAL BEFORE CIT(A) OCCURRED DUE TO ILLNESS OF THE FATHER OF THE ASSESSEE AND ON ACCOUNT OF THE FACT THAT THE ASSESSMENT ORDER WAS MIXED UP WITH 2 ITA NO. 4956 /MUM/201 7 . SHRI BHAVIK KAMLESH SHAH , MUMBAI OTHER PAPERS. THEREFORE, BECA USE OF THIS REASON THE APPEAL BY THE ASSESSEE COULD NOT BE FILED WITHIN LIMITATION. 3. THE APPEAL OF THE AS SESSEE WAS DISMISSED BY THE LD. CIT(A) ON THE GROUND THAT THERE ARE NO SUFFICIENT CAUSE FOR CONDONING THE DELAY, AGAINST WHICH THE ASSESSEE HAS FIL ED THE PRESENT APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED THE DETAILED FACTS IN WRITING VIDE LETTER DATED 15.11.2018 . AFTER HEARING BOTH THE PARTIES AND AFTER CONSIDERING THE ORDERS PASSED BY THE LOWER AUTHORITIES WE ARE OF THE VIEW THAT LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS. THEREFORE, CONSIDERING THE REASONS CONTAINED IN LETTER DATED 15.11.2018 FILED BEFORE US, WE ARE OF THE VIEW THAT THE ASSESSEE HAS EXPLAINED IN DETAILS THE FACTS LEADING TO DELAY IN FILING THE APPEAL. THE APPEAL BEFORE LD. CIT(A). 5. BE THAT AS IT MAY IT IS THE MANDATE OF THE LAW THAT L IS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AND THEREFORE KEEPING IN VIEW THE SAID PRINCIPLES LAID DOWN BY DIFFERENT HONBLE HIGH COURTS AS WE LL AS HONBLE SUPREME COURT, WE RESTORE THE MATER BACK TO THE FILE OF A.O AS THE ASSESSMENT ORDER IN THIS CASE WAS ALSO PASSED IN THE ABSENCE OF ASSESSEE U/S 144 R.W.S 147 OF THE INCOME TAX ACT, 1961. THEREFORE, IN THIS CIRCUMSTANCES WE SET ASIDE THE ORDE R OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O FOR DECIDE THE CASE AFRESH. WE ALSO DIRECT THE ASSESSEE TO COOPERATE WITH THE A.O FOR EXPEDITIOUS DECISION OF THE ASSESSMENT ORDER. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECIS ION TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE 3 ITA NO. 4956 /MUM/201 7 . SHRI BHAVIK KAMLESH SHAH , MUMBAI ADJUDICATED BY THE A.O INDEPENDENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, WE A LLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OP EN COURT ON THIS 5 T H D EC , 201 8 . S D / - S D / - ( B.R. BASKARAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 0 5 /12 /201 8 KRK / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY/