HEMRAJ KANARAM CHOUDHARY, MUMBAI V. INCOME TAX OFFICER,19(1)(5), MUMBAI

ITA 5141/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6842 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL , AM / I.T.A. NO. 5141 /MUM/201 9 ( / ASSESSMENT YEAR: 20 1 1 - 1 2 ) HEMRAJ KANARAM CHOUDHARY PROP. OF M/S. APOLLO STEEL INDUSTRIES ROOM NO.11, 2 ND FLOOR, NARAYAN BUILDING, ARDESHIRDADY STREET, MUMBAI - 400004 . / VS. ITO - 19(1)(5) ROOM NO.215, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007. ./ ./ PAN/GIR N O. : AHOPC0753H ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 07 / 07 /202 1 /DATE OF PRONOUNCEMEN T: 27 /07/2021 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 29 .0 5 . 201 9 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 30 , MUMBAI (HEREINAFTER REFERRED TO AS THE CIT( A)) RELE VANT TO THE A.Y.20 11 - 1 2 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1 .1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEAL) - 30, MUMBAI ERRED IN ENHANCING THE ADDITION TO RS.17,89,397/ - FROM RS .2,23,675/ - BEING ASSESSEE BY : NONE REVENUE BY: M S . SMITA VERMA ( D R) ITA NO. 5141 /M UM /201 9 A.Y.20 1 1 - 1 2 2 TREATING THE GENUINE PURCHASES OF RS.17,89,397/ - AS 100% NON - GENUINE PURCHASES WITHOUT APPRECIATING THE LAW, FACTS AND CIRCUMSTANCES OF THE CASE. THE PROVISIONS OF THE ACT OUGHT TO HAVE BEEN PROPERLY CONSTRUED AND REGARD BEING HAD TO FACT S OF THE CASE NO SUCH ADDITION SHOULD HAVE BEEN MADE. REASONS ASSIGNED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 30 ARE WRONG AND UNLAWFUL TO JUSTIFY THE ADDITION OF RS.17,89,397/ - . THE SAME TO BE DELETED. 2. THE ORDER MADE UNDER SECTION 143(3) R.W.S . 147 OF THE ACT BY THE LEARNED ASSESSING OFFICER IS BAD - IN - LAW, ULTRA VIRUS AND WITHOUT APPRECIATING THE FACTS AND LAW IN THEIR PROPER PERSPECTIVE AND IS LIABLE TO BE ANNULLED. . 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE DEP ARTMENT AND HAS GONE THROUGH THE CASE CAREFULLY . WE FIND THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, T HEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS NOT LIABLE TO BE SUSTAINED IN THE INTEREST OF JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW . 4 . FOR THIS PROP OSITION WE PLACE D RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) ITA NO. 5141 /M UM /201 9 A.Y.20 1 1 - 1 2 3 5 . ACCORDINGLY IN THE INTEREST OF JUSTICE , WE REMIT THE ISSUE RAISED IN THE APPEAL TO THE FILE OF THE LD. CIT(A). LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING A PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . THEREFORE, IN THE SAID CIRCUMSTANCES, W E ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTU NITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 27 / 07 /202 1 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL ME MBER MUMBAI; DATED : 27 / 07 /202 1 VIJAY PAL SINGH (SR. PS) ITA NO. 5141 /M UM /201 9 A.Y.20 1 1 - 1 2 4 / 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