SHABIHUL HASSAN SYED, MUMBAI V. ITO 17(3)(3), MUMBAI

ITA 5345/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3197 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 17-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Assessee Lawyers: AJAY R SINGH
• Keywords: Set aside
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G MUMBAI BEFORE SHRI RAJESH KUMAR, HON. ACCOUNTANT MEMBER & SHRI AMARJIT SINGH, HON. JUDICIAL MEMBER ITA NO. 5345 / MUM /201 8 (ASST. YEAR : 2014 - 1 5 ) SHABIHUL HASSAN SYED, 401, 4 TH FLOOR, GALAXY APARTMENT, PLOT NO. 26, SECTOR - 1, SANPADA, MUMBAI. VS. ITO - 17(3)(3) , MUMBAI. PAN NO. AAFPS 4819 N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY R. SINGH , ADV . DEPARTMENT BY : SHRI V. VINOD KUMAR , SR. D R DATE OF HEARING : 03 / 12 /201 9 . DATE OF PRONOUNCEMENT : 03 / 12 /201 9 . O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 28 , MUMBAI , DATED 17/07/2018 FOR THE A.Y. 2014 - 15 . 2. LD.AR AT THE OUTSET SUBMITTED THAT THE LD.CIT(A) AS WELL AS AO HAS PASSED EX - P A RTE ORDER S FOR WHICH THE ASSESSEE IS IN NO WAY RESPONSIBLE AS THE REASON WERE BEYOND THE CONTROL OF THE ASSESSEE. THE LD.AR , IN SUPPORT OF HIS ARGUMENT S , FILED AN AFFIDAVIT OF THE ASSESSEE STATING THAT SHRI V.G. PRASAD , TAX 2 ITA NO. 5345 / MUM /201 8 (SHABIHUL HASSAN SYED) CONSULTANT WAS LOOKING AFTER THE TAX MATTERS AND WAS AUTHORISED TO APPEAR BEFORE THE AO, HOWEVER, HE FEL L SICK IN 2016 AND DIAGNOSED WITH CANCER AND ULTIMATELY WENT INTO COMA. LD.AR FURTHER SUBMITTED THAT SHRI V.G. PRASAD IS STILL UNDER MEDICAL TREATMENT AND IS ON THE DEATH BED. HE FURTHER SUBMITTED THAT ASSESSEE TRIED SEVERAL TIMES TO CONTACT HIM AND ALSO VISITED HIS RESIDENCE TO MEET HIM PERSONALLY, BUT COULD NOT COLLECT THE FILE AS HIS FAMILY DID NOT ALLOW THE ASSESSEE TO MEET HIM . THUS, THE ASSESSEE COULD NOT FILE THE EVIDENCES AND DETAILS BEFORE THE AUTHORITIES BELOW , WHICH RESULTED INTO PASSING EX - PARTE ORDER S B Y THE AO AS WELL AS LD.CIT(A). LD.AR PRAYED BEFORE THE BENCH THAT ONE MORE OPP ORTUNITY MAY KINDLY BE GRANTED TO THE ASSESSEE TO REPRESENT HIS CASE B E FORE THE AO BY RESTORING T H E M A T T E R TO THE FILE OF THE AO IN THE INTEREST OF JUSTICE AND FAIR PLAY . 3 . LD.DR, ON THE OTHER HAND, LEFT THE ISSUE TO THE DISCRETION OF THE BENCH WHEN A QUERY WAS PUT TO HIM ON THE EX - PARTE ORDERS PASSED BY THE AUTHORITIES BELOW ESPECIALLY I N V I E W O F THE SERIOUS AILMENT OF THE COUNSEL OF THE ASSESSEE. 4 . AFTER HEARING THE RIVAL CONTENTIONS OF BOT H THE PARTIES AND PERUS ING THE MAT E RIAL ON RECORD , WE OBSERVE THAT THE PROCEEDINGS BEFORE THE LD.CIT(A) AS WELL AS AO WENT EX - PARTE DUE TO ILLNESS OF THE COUNSEL OF THE ASSESSEE, WHO WAS DIAGNOSED WITH CANCER AND 3 ITA NO. 5345 / MUM /201 8 (SHABIHUL HASSAN SYED) IS STILL CONFINE TO BED. WE ARE CONVINCED ABOUT THE REASONS WHICH ARE APPARENTLY BEYOND THE CONTROL OF THE ASSESSEE DUE TO WHICH THE ASSESSEE COULD NOT REPRESENT THE CASE BEFORE THE AO A N D LD.CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO SET ASIDE THE APPEAL TO TH E FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME DENOVO AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 3 R D DECEMBER , 201 9 S D / - S D / - ( AMARJIT SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 0 3 R D DECEMBER , 201 9 . VR/ - COPY TO: 1 . THE ASSESSEE SHABIHUL HASSAN SYED, 401, 4 TH FLOOR, GALAXY APARTMENT, PLOT NO. 26, SECTOR - 1, SANPADA, MUMBAI. 2 . THE REVENUE ITO - 17(3)(3), MUMBAI. 3 . THE PR. CIT - 17, MUMBAI. 4 . THE CIT(A) - 28, MUMBAI. 5 . THE D.R . , MUMBAI. 6 . GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., MUMBAI