DEVYANI PRAKASH JOISHER, MUMBAI V. INCOME TAX OFFICER-27(1)(4), MUMBAI

ITA 5042/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3514 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 01-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Assessee Lawyers: BHADRESH JOSHI PRESENT
• Keywords: Opportunity of being heard; Non passing of speaking order
• Section: 201

Judgement Text

1 ITA NO.5042/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N. K. PRADHAN (AACOUNTANT MEMBER) I.T.A. NO. 5 042 /MUM/2019 (ASSESSMENT YEAR : 201 0 - 1 1 ) DEVYANI PRAKASH JOSHER 03 RD FLOOR, BHANU SADAN RAJAWADI,ROAD NO.4 GHATKOPAR (E), MUMBAI PAN : ACVPJ1393E VS ITO - 27(1)(4) , MUMBAI APPELLANT RESPONDENT PRESENT FOR APPELLANT SHRI BHADRESH JOSHI PRESENT FOR RESPONDENT MS. SMITA VERMA DATE OF HEARING 16 - 02 - 2021 DATE OF PRONOUNCEMENT 0 5 - 03 - 2021 O R D E R PER SAKTIJIT DEY (JM) THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 02 - 05 - 2019 OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 2 4 , MUMBAI FOR THE ASSESSMENT YEAR 201 0 - 1 1 . 2. WE HAV E HEARD SHRI BHADRESH JOSHI, LEARNED AUTHORISED REPRESE NTATIVE AND MS. SMITA VERMA, LEARNED DEPARTMENTAL REPRESENTATIVE. 3. THE BASIC GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPEAL IS AGAINST THE EX PARTE DISPOSAL OF HER APPEAL BY LEARNED COMMISSIONER (APPEALS), THAT TOO, IN LIMINE AND THROUGH A NON SPEAKING ORDER. 2 ITA NO.5042/MUM/2019 4. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. IN THE ASSESSMENT YEAR U NDER DISPUTE, ASSESSEE FILED HER RETURN OF INCOME ON 29 - 09 - 2010 DECLARIN G TOTAL INCOME OF RS.65,158/ - . ASSESSMENT IN CASE O F THE ASSESSEE WAS COMPLETED UNDER SECTION 14 3(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 8 - 03 - 2016 BY MAKING CERTAIN ADDITIONS WHICH ENHANCED THE INCOME TO RS.30,27,990/ - . AGAINST THE ASSESSMENT ORDER SO PASSED, ASSESSE E PREFERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). BY THE IMPUGNED ORDE R, LEARNED COMMISSIONER (APPEALS), HAS DISPOSED OF ASSESSEES APPEAL EX PARTE BY DISMISSING IT WITHOUT DECIDING THE ISSUES ON MERIT. 5. HAVING CONSIDERED T HE SUBMISSIONS OF THE PARTIES, WE FIND THAT LEARNED COMMISSIONER (APPEALS) HAS DISPOSED OF ASSESSEES APPEAL EX PARTE. THOUGH , AT PARAGRAPH 5 .2.1 OF THE APPELLATE ORDER, LEARNED COMMISSIONER (APPEALS) HAS STATED THAT HEARING NOTICES WERE ISSUED TO ASSESSEE ONLINE AND WAS SERVED O N THE ASSESSEE; HOWEVER, THE LEARNED COUNSEL APPEARING FOR T HE ASSESSEE HAS D ISPUTED THIS. HE HAS SUBMITTED THAT NO SUCH NOTICES ALLEGED TO HAVE BEEN SENT BY LEARNED COMMISSIONER (APPEALS) WERE EVER RECEIVED BY THE ASSESSEE. BE THAT AS IT MAY, IT IS A FACT ON RECORD THAT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED EX PARTE. FURTHER , THERE IS DISPUTE WITH REGARD TO SERVICE OF HEARING NOTICE ISSUED ONLINE. WE H AVE FURTHER NOTICED THAT LEARNED COMMISSIONER (APPEALS) HAS SIMPLY DISMISSED THE APPEAL IN LIMINE WITHOUT DECIDING THE ISSUES / GROUNDS RAISED THEREIN, ON MERIT S . AS PER THE MA NDATE OF S ECTION 251(1)(A) OF THE ACT, LEARNED COMMISSIONER (APPEALS) HAS TO DECIDE THE APPEAL AGAINST AN ORDER OF ASSESSMENT BY CONFIRMING, REDUCING, ENHANCIN G OR ANNULLING THE ASSESSMENT. THUS, WHAT THE PROVISION EMPOWER S THE FIRST APPELLATE AUTHORITY TO DO IS TO DECIDE THE APPEAL ON MERIT S. THAT BEING THE CASE, LEARNED COMMISSIONER (APPEALS) CANNOT DISMISS THE APPEAL IN LIMINE ON THE GROUND OF NON PROSECUTION, WITHOUT DECIDING THE ISSUES ON MERIT S. FOR THIS REASON ALONE, 3 ITA NO.5042/MUM/2019 THE IMPUGNE D ORDER OF LEARNED CO MMISSIONER (APPE ALS) IS LEGALLY UNSUSTAINABLE. THEREFORE, WE HAVE NO HESITATION IN SETTIN G IT ASIDE AND DIRECTING LEARNED COMMISSIONER (APPEALS) TO DECIDE ASSESSEES APPEAL AFRESH ON MERIT, AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THIS 0 5 /03 /2021 S D / - S D / - (N. K. PRADHAN) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 0 5 /03 /2021 COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI