SOHANRAJ SHAH, MUMBAI V. INCOME TAX WARD-19(3)(4), Mumbai

ITA 5223/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6840 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 10-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: JITENDRA SINGH; NIMESH K CHOTHANI
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ITA NO. 5223 / MUM/20 17 & 5224/MUM/2017 ( ASSESSMENT YEAR : 2010 - 11 & 2011 - 12 ) SHRI SOHANRAJ K. SHAH 7, MARUTI MANDIR MARG 5 TH KUMBHARWADA MUMBA I - 400 007 VS. INCOME TAX OFFICER 19(3)(4) MATRU MANDIR TARDEO, MUMBAI 400 007 PAN/GIR NO. AADPS4048P APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI NIMESH K CHOTHANI & SHRI JITENDRA SINGH REVENUE BY SHRI SUMAN KUMAR DATE O F HEARING 25 / 04 /201 8 DATE OF PRONOUNCEME NT / /201 8 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) - 29, MUMBAI DATED 30/05/2017 FOR THE A.Y.2010 - 11 & 2011 - 12 IN THE MATTER OF ORDER PASSED U/S.144 R.W.S. 147 OF THE INCOME TAX ACT, 1961. 2. THE COMMON GROUNDS HAVE BEEN TAKEN BY ASSESSEE IN A.Y.2010 - 11 AND 2011 - 12. 1. THE EXPARTEE - ORDER PASSED BY THE EARNED COMMISSIONER OF INCOME TAX IS BAD IN LAW AND FACTS. 2. THE APPELLANT HAS BEEN CARRYING ON BUSINESS BY HAVING SHOP AT INDUSTRIAL AREA AT NASHIK AT PLOT NO. 84, MIDC SATPUR, NASHIK - 422007 AND MANAGING THE BUSINESS FROM THERE ONLY. HE COMES FOR A DAY OR TWO IN A MONTH AT MUMBAI OFFICE FOR SETTLING THE PAYMENTS AND SOME LEGAL ITA NO. 5223/MUM/2017 & 5224/MUM/2017 SHRI SOHANRAJ SHAH 2 MATTERS. HE WAS NOT BROUGHT TO NOTICE ABOUT THE HEARING OF THE APPEAL HENCE COULD NOT PREPARE SUBMISSIONS BY INFORMING HIS CHARTERED ACCOUNTANT. ABSENCE ON THE DATE OF HEARING WAS NOT INTENTIONAL BUT DUE TO NOT BEING KNOWN WITH THE FACTS OF NOTICES FOR HE ARING WAS THERE. HENCE, APPELLANT PRAYED THAT HE HAS GOT A VERY STRONG CASE ON MERITS AND THE APPELLANT BE GIVEN AN OPPORTUNITY TO PRESENT HIS CASE AND THE LEARNED CIT (A) BE DIRECTED TO DECIDE THE SAME ON MERITS. 3. THE LEARNED COMMISSIONER OF INCOME T AX ERRED IN ACCEPTING THE ORDER OF THE ASSESSING OFFICER. APPELLANT REQUEST YOUR HONOUR TO CONSIDER THE ABOVE FACTS AND DELETE THE ADDITIONS TO THE TOTAL INCOME FOR WANT OF JUSTICE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 4. IT WAS SUBM ITTED BY LEARNED AR THAT THE ASSESSEE LOST HIS MOTHER AND HIS BROTHER - IN - LAW WAS ADMITTED IN HOSPITAL DUE TO SERIOUS ILLNESS, THE ASSESSEE COULD NOT APPEAR BEFORE THE AO AND EXPART Y ORDER WAS PASSED. HE FURTHER SUBMITTED THAT AGAINST THE EXPARTE ORDER OF A O, ASSESSEE FILED APPEAL BEFORE THE CIT(A), AND ALL THE DETAILS WERE FILED BEFORE HIM . HOWEVER, THE ASSESSEE COULD NOT ATTEND THE PROCEEDINGS BECAUSE AT THAT TIME HIS ACCOUNTANT MR. YOGESH DEVALIA WHO WAS PREPARING ALL THE DETAILS REQUIRED FOR CIT(A) PROCE EDINGS HAD A SUICIDAL TENDENCY AND HE DIED IN AN ACCIDENT. IN SUPPORT OF HIS CONTENTION, LEARNED AR FILED AFFIDAVIT OF THE PROPRIETOR OF THE FIRM MR. SOHANRAJ K. SHAH WHICH READS AS UNDER: - ITA NO. 5223/MUM/2017 & 5224/MUM/2017 SHRI SOHANRAJ SHAH 3 ITA NO. 5223/MUM/2017 & 5224/MUM/2017 SHRI SOHANRAJ SHAH 4 ITA NO. 5223/MUM/2017 & 5224/MUM/2017 SHRI SOHANRAJ SHAH 5 ITA NO. 5223/MUM/2017 & 5224/MUM/2017 SHRI SOHANRAJ SHAH 6 5. LEARNED AR ALSO PLACED ON RECORD DEATH CERTIFICATE. 6. WE HAD CAREFULLY GONE THROUGH THE AFFIDAVIT AND THE DEATH CERTIFICATE. DUE TO REASONS BEYOND HIS CONTROL, THE ASSESSEE COULD NOT APPEAR BEFORE THE AO, THEREFORE, AO PASSED EXPARTE ORDER. SIMILARLY, THE CIT(A) ALSO PASSED AN EXPARTE ORDER WITHOUT GIVING ANY FINDING ON MERITS OF THE ADDITION. KEEPING IN VIEW THE SUBSTANTIAL INTEREST OF JUSTICE, WE RESTORE BOTH THESE APPEALS TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO APPEAR BEFORE AO WI THIN TWO MONTHS FROM THE DATE OF RECEIVING OF THIS ORDER. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 29 / 05 /201 8 SD/ - ( RAVISH SOOD ) SD/ - ( R.C.SH ARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 2 9 / 05 /201 8 KARUNA SR. 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, IT AT, MUMBAI 6. GUARD FILE. //TRUE COPY//