SHRI. PRAVIN MEHTA LEGAL HEIR OF THE LATE SAROJ PRAVIN MEHTA, Mumbai V. ITO 19 (3)(2), Mumbai

ITA 4993/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3721 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

1 ITA 4993/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) I.T.A NO.4 993 /MUM/2019 (ASSESSMENT YEAR : 2009 - 10) SHRI PRAVIN MEHTA LEGAL HEIR OF THE LATE SAROJ PRAVIN MEHTA,1/28, KALYAN BLDG, 156, KHADILKAR ROAD, MUMBAI - 400 004 PAN : A HDPM9420E VS INCOME - TAX OFFICER - 19(3)(2), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SMT. SMITA VERMA (DR) DATE OF HEARING 01 - 02 - 2021 DATE OF PRONOUNCEMENT 25 /02/2021 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 1 0 - 06 - 2019 OF LEARNED COMMISSIONER OF INCOME TAX (A PPEALS ) - 30 , MUMBAI FOR THE ASSESSMENT YEAR 2009 - 10. 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE. HOWEVER, CONSIDERING THE FACT THAT THE PRIMARY GRIEVANCE OF THE ASSESSEE IS AGAINST EX PARTE DISPOSAL OF HIS APPEAL BY THE 2 ITA 4993/MUM/2019 FIRST APPELLATE AUTHORITY , I PROCEEDED TO HEAR AND DISPOSE OF THE APPEAL EX PARTE QUA THE ASSESSEE, AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIALS ON RECORD. 3. BRIEFLY, THE FACTS ARE THAT THE DECEAS ED ASSESSEE WAS AN INDIVIDUAL. FOR THE ASSESS MENT YEAR UNDER DISPUTE, SHE FILED HER RETURN OF INCOME ON 05 - 11 - 2009 DECLARING TOTAL INCOME OF RS.1,73,470/ - . IN COURSE OF ASSESSMENT PROCEEDINGS, THE A SSESSING O FFICER NOTICING THAT CERTAIN CASH DEPOSITS HAVE BEEN MADE IN THE BANK ACCOUNT AS WELL AS INT EREST INCOME HA S NOT BEEN OFFERED TO TAX, CALLED UPON THE ASSESSEE TO FURNISH THE REASON FOR NOT DOING SO. THOUGH , THE ASSESSEE FURNISHED HER EXPLANATION ON THE QUERY RAISED BY THE A SSESSING O FFICER ; HOWEVER, HE WAS NOT CONVINCED. THEREFORE, HE PROCEEDED TO COMPLETE THE ASSESSMENT BY ADDING BACK AN AMOUNT OF RS.18,72,259/ - AS UNDISCLOSED INCOME. THOUGH , THE ASSESSEE CONTESTED THE AFORESAID ADDITION, AS IT APPEARS, THE ADDITION WAS SUSTAINED IN APPEAL. BE THAT AS IT MAY, ON THE BASIS OF THE AFORESAID ADDITION, THE A SSESSING O FFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY U NDER SECTION 271(1)(C) OF THE ACT AND ULTIMATELY PASSED AN ORDER IMPOSING PENALTY OF RS.1,03,651/ - UNDER THE SAID PROVISION. THOUGH , THE ASSESSEE CHALLENGED THE IMPOSITION OF PENALTY BEFORE THE FIRST APPELLATE AUTHORITY; HOWEVER, BY THE IMPUGNED ORDER LEARNED COMMISSIONER (A PPEALS ) CONFIRMED THE PENALTY. 4. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON R ECORD. AS COULD BE SEEN FROM GROUND S 1 TO 3, THE PRIMARY GRIEVANCE OF THE ASSESSEE IS AGAINST EX PARTE DISPO S AL OF THE APPEAL BY LEARNED COMMISSIONER (A PPEALS ) . ON PERUSAL OF IMPUGNED ORDER OF LEARNED COMMISSIONER (A PPEALS ), I FIND THAT A SINGLE NOTICE OF HEARING DATED 29 - 05 - 2019 WAS ISSUED TO THE ASSESSEE. SINCE , THERE WAS NO COMPLIANCE TO THE SAID NOTICE, LEARNED COMMISSIONER 3 ITA 4993/MUM/2019 (APPEALS) PROCEEDED TO DISPOSE OF THE APPEAL EX PARTE WITHOUT AFFORDING ANY FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS CAN BE SEEN FROM THE FACTS ON RECORD, DURING THE PENDENCY OF PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE HAD DIED AND HAS BEEN SUBSTITUTED BY HER LEGAL HEIR. THIS COULD BE A REASON FOR NON - APPEARANCE OF THE ASSESSEE ON THE DATE FIXED FOR HEARING. THEREFORE , IN MY CONSIDERED OPINION, LEARNED COMMISSIONER (APPEALS) SHOULD NOT HAVE DISPOSED OF THE APPEAL EX PARTE ON THE FIRST DATE OF HEARING ITSELF. TH US , THERE IS CLEAR VIOLATION OF RULES OF NATURAL JUSTICE AS THE ASSESSEE HAS NOT BEEN P ROVIDED WITH A REASONABLE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, I SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (A PPEALS ) AND RESTORE THE ISSUE S BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSE S . 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 /02/2021. SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI, DATED : 25 / 02/2021. PAVANAN, SR.P.S (ON CONTRACT) 4 ITA 4993/MUM/2019 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONENT. 3. THE CIT(A) 4. 4. THE CIT 5. D.R., ITAT, MUMBAI. 6. GUARD FILE. //TRUE COPY// BY ORDER I.T.A.T., MUMBAI.