RAJRATTAM G. MOHTTA, NAVI MUMBAI V. ACIT PALGHAR CIR PALGHAR, PALGHAR

ITA 5232/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9351 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 04-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 08-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: RAKESH MILWANI
• Keywords: Deemed dividend; Notional interest
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI P.M. JAGTAP (A.M.) ITA NO. 5232/MUM /2011 ASSESSMENT YEAR : 2007-08 RAJRATTAN G MOHATTA, C/O ORION CHEM PRIVATE LIMITED, GALA NO. 2, BUILDING 3, SECTOR 3, MILLENIUM BUSINESS PARK, MAHAPE, NAVI MUMBAI 400 710. PAN AABPM6741R VS. ASSTT. COMMISSIONER OF INCOME- TAX, PALGHAR CIRCLE, BIDCO ROAD, PALGHAR, DIST. THANE. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI RAKESH MILWANI DEPARTMENT BY : SHRI A.B. KOLI DATE OF HEARING 04-12-2012 DATE OF PRONOUNCEMENT 04-12-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE EX PARTE ORDER DTD. 14-03-2011 PASSED BY THE LD. CIT(A )- II, THANE FOR THE A.Y. 2007-08. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL IS A DIRECTOR IN TWO COMPANIES, FILED RETURN OF INCOME D ECLARING TOTAL INCOME OF RS. 17,06,436/-. HOWEVER, THE ASSESSMENT WAS COM PLETED ON A TOTAL ITA NO. 5232/MUM/2011 2 INCOME OF RS. 31,56,300/- INCLUDING DISALLOWANCE OF EXCESS INTEREST CLAIMED U/S 24(B) RS. 5,03,564/-, DEEMED DIVIDEND U /S 2(22)(E) RS. 9,07,006/- AND NOTIONAL INTEREST RS. 39,297/- VIDE ORDER DTD. 23-11- 2009 PASSED U/S 143(3) OF THE INCOME-TAX ACT, 1961 (THE ACT). ON APPEAL, THE LD. CIT(A) PROVIDED VARIOUS OPPORTUNITIES TO TH E ASSESSEE, HOWEVER, THERE WAS NO RESPONSE, THEREFORE, THE LD. CIT(A) DI SMISSED THE ASSESSEES APPEAL ON THE GROUND THAT THE ASSESSEE IS NOT INTER ESTED IN PURSUING HER APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VALIDITY OF THE EX PARTE ORDER PASSED BY THE LD. CIT(A) AND THE SUSTEN ANCE OF ADDITIONS/DISALLOWANCES MADE BY THE A.O. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE SUBMITS THAT THE NOTICE WAS SENT AT PLACE OTHER THAN THE PL ACE REQUESTED IN APPEAL MEMO, ONE OF THE NOTICES WAS ADEQUATELY REPL IED AND OTHER NOTICES ARE NOT AVAILABLE IN THE FILE OF THE APPELL ANT (PROBABLY NOT RECEIVED BY THE APPELLANT), THE ASSESSEE COULD NOT APPEAR BE FORE THE LD. CIT(A). HE FURTHER SUBMITS THAT SINCE THE LD. CIT(A) HAS NOT D ECIDED THE ISSUE ON MERITS, THEREFORE, IN VIEW OF THE DECISION OF THE D ELHI BENCH OF THE TRIBUNAL IN THE CASE OF FINE PROPERTIES PVT. LTD. V S. ITO IN ITA NO. 648/DEL/2012 FOR A.Y. 2004-05 ORDER DTD. 13-4-2012, THE ORDER PASSED BY THE LD. CIT(A) BE SET ASIDE TO HIS FILE TO DECID E THE ISSUES ON MERITS ITA NO. 5232/MUM/2011 3 AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. HE ALSO PLACED ON RECORD THE PHOTOCOPY OF THE SAID ORDER OF THE TRIBUNAL. 5. ON THE OTHER HAND, THE LD. D.R. WHILE RELYING ON THE ORDER OF THE A.O. AND LD. CIT(A) SUBMITS THAT HE HAS NO OBJECTIO N IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT IT IS NOT IN DISPUTE THAT THE LD. CIT(A) AFTER PROVIDING VARIOUS OPPORTUNITIES TO THE ASSESSEE HAS NOT DECIDED THE ISSUE ON MERITS. ACCO RDING TO SECTION 250(6) OF THE ACT THE ORDER OF THE COMMISSIONER (AP PEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. SINCE THE ORDER PASSED BY THE LD. CIT(A) IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE ACT, THEREFORE, WE ARE OF THE VIEW THAT, IN THE INTEREST OF JUSTICE, THE MATTER SHOULD GO BA CK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSE D BY THE LD. CIT(A) AND RESTORE THE APPEAL TO HIS FILE TO DECIDE THE SA ME AFRESH ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, P ARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 5232/MUM/2011 4 7. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 04-12-2012. SD/- (P.M. JAGTAP ) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED : 04-12-2012. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- II, THANE 4. DIT (INTERNATIONAL TAXATION) III, THANE. 5. DEPARTMENTAL REPRESENTATIVE, BENCH D, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI