MAJOR ASHOK KUMAR SETHI, MUMBAI V. ITO 10(3)(2), MUMBAI

ITA 535/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3546 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2002-2003
• Appeal Filed On: 19-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAJOR ASHOK KUMAR SETHI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUM BAI .., !' , #$ # % BEFORE SHRI B. R. MITTAL, J. M. AND SHRI SANJAY AR ORA, A. M. ./ I.T.A. NO. 535/MUM/2011 ( ' ( )( ' ( )( ' ( )( ' ( )( / / / / ASSESSMENT YEAR: 2002-03) MAJOR ASHOK KUMAR SETHI NPL HOUSE, SHREEMAHALAXMI HALL BUILDING, MINERVA INDUSTRIAL COMPLEX, MULUND (W), MUMBAI-400 080 ' ' ' ' / VS. INCOME TAX OFFICER-10(3)(2) AYAKAR BHAWAN, 4 TH FLOOR, MAHARISHI KARVE MARG, CHURCHGATE, MUMBAI-400 020 * #$ ./ + ./ PAN/GIR NO. : AAHPS 5711 R ( *, / APPELLANT ) : ( -.*, / RESPONDENT ) *, / # / APPELLANT BY : MAJOR ASHOK KUMAR SETHI -.*, 0 / # / RESPONDENT BY : SHRI MANOJ KUMAR ' 0 12$ / // / DATE OF HEARING : 28.05.2013 3!) 0 12$ / DATE OF PRONOUNCEMENT : 28.05.2013 #4 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-22, MUMBAI (CIT(A) FOR SH ORT) DATED 03.11.2010, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2002-03 VIDE ORDER DATED 10.03.2005. 2 ITA NO.535/MUM/2011 (A.Y. 2002-03) MAJOR ASHOK KUMAR SETHI VS. ITO 2.1 THE PRINCIPAL GRIEVANCE, RAISED BY THE ASSESSEE PER GROUND NO. 2 OF HIS APPEAL, IS THAT THE FIRST APPELLATE AUTHORITY DID NOT GRANT HI M TIME TO PRESENT HIS CASE BEFORE HIM, AND REJECTED HIS PRAYER FOR ADJOURNMENT DESPITE THE FAC T THAT HIS WIFE, SUFFERING FROM CANCER, WAS CRITICALLY ILL, SO THAT HE WAS NEEDED TO PERSON ALLY ATTEND TO HER, INCAPACITATING HIM TO ATTEND TO HIS APPEAL. IT IS FURTHER CLAIMED THAT TH E VARIOUS DETAILS AND EXPLANATIONS PRESENTED BEFORE HIS PREDECESSOR SINCE 08.11.2005 H AVE NOT BEEN TAKEN INTO ACCOUNT IN DECIDING HIS APPEAL (GD. # 3). THE ASSESSEE, PRESEN T IN PERSON, WOULD BASE HIS ARGUMENTS BEFORE US ON THESE TWO GROUNDS. 2.2 THE LD. DR, ON THE OTHER HAND, WOULD SUBMIT THA T THE ASSESSEE HAD BEEN ALLOWED SUFFICIENT OPPORTUNITY BY THE LD. CIT(A) TO STATE H IS CASE, AS WOULD BE APPARENT FROM A READING OF PARA 5 OF THE IMPUGNED ORDER. IN FACT, T HE ASSESSEE CLAIMING BEFORE HIM THAT THE ASSESSING OFFICER (A.O.) HAD FRAMED THE ASSESSMENT WITHOUT CONSIDERING THE EVIDENCES AS WELL AS THE WRITTEN SUBMISSIONS FILED BEFORE HIM, T HE MATTER STOOD REMITTED BY THE LD. CIT(A) TO THE A.O., AND HIS APPEAL ADJUDICATED UPON ONLY AFTER CONSIDERING THE REMAND REPORT, THE RELEVANT CONTENTS OF WHICH STAND REPROD UCED AT PARA 4 OF THE IMPUGNED ORDER. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 WE ARE REQUIRED TO ADDRESS AN APPEAL PREFERRED BEFORE US, GROUND-WISE. IN THIS RESPECT, AS AFORE-MENTIONED, THE ASSESSEE VIDE ITS GROUND NO. 2 HAS CLAIMED DENIAL OF NATURAL JUSTICE INASMUCH AS HIS PLEA FOR ADJOURNMEN T, MADE IN WRITING FOR A BONA FIDE REASON, STOOD NOT ACCEPTED, AND THE APPEAL DECIDED EX PARTE , PRECLUDING A FAIR OPPORTUNITY TO STATE HIS CASE ON MERITS. TO THIS EXTENT, WE ARE IN FULL AGREEMENT WITH THE ASSESSEE. ONCE THE ASSESSEE HAS IN WRITING REQUESTED THE FIRS T APPELLATE AUTHORITY, WHOSE ORDER IS, AS IN THE INSTANT CASE, THE FIRST ORDER BY A SENIOR OF FICER OF THE REVENUE, SO THAT IT OUGHT TO PROJECT THE CASE OF BOTH THE ASSESSEE AS WELL AS TH E REVENUE IN SUFFICIENT DETAIL, EXHIBITING PROPER APPRECIATION OF FACTS, TO GRANT HIM TIME, ST ATING SUFFICIENT REASONS FOR THE SAME, HE COULD NOT PROCEED TO DECIDE THE MATTER EX PARTE , AS DONE. THE LD. CIT(A) HAS NOT EXPRESSED ANY DOUBT WITH REGARD TO THE GENUINENESS OF THE ASSESSEES REQUEST FOR TIME, I.E., ON ACCOUNT OF HIS WIFE BEING SERIOUSLY ILL. A S SUCH, IT IS NOT UNDERSTANDABLE AS TO WHY 3 ITA NO.535/MUM/2011 (A.Y. 2002-03) MAJOR ASHOK KUMAR SETHI VS. ITO THE SAID PLEA, MADE IN WRITING, WAS NOT ACCEPTED. I N FACT, THE IMPUGNED ORDER BEARS NO REASON/S FOR THE SAID REJECTION. IN THIS VIEW OF TH E MATTER; THE APPELLANT BEING ADMITTEDLY NOT IN A POSITION TO FOCUS ON AND PREPARE HIS CASE, THE FACT THAT HE FAILED TO FILE COUNTER COMMENTS TO THE A.O.S REPORT DESPITE HAVING BEEN P ROVIDED OPPORTUNITY FOR THE SAME BY THE LD. CIT(A), IS RENDERED AS OF NO MOMENT; RATHER , SUPPORTS THE ASSSESSEES CASE OF BEING NOT IN A POSITION TO DO SO DUE TO THE SEVERE PERSONAL CONSTRAINT UNDER WHICH HE WAS PLACED; SUCH A SERIOUS PROBLEM TO A CLOSE FAMILY ME MBER CAUSING SEVERE DISLOCATION. THIS IS ALL THE MORE SO IN THE INSTANT CASE, WITH THE AS SESSEE PERSONALLY REPRESENTING HIS CASE. FURTHER, WE ARE UNABLE TO, WITHOUT HAVING ACCESS TO THE DETAILS OF THE EXPENDITURE FILED BY THE ASSESSEE BEFORE, AS CLAIMED, THE INCUM BENT CIT(A) SINCE 08.11.2005, CLAIMING THE SAME TO HAVE BEEN NOT CONSIDERED BY TH E LD. CIT(A). IT IS PRECISELY FOR THESE REASONS THAT IT IS REQUIRED THAT THE CASE OF BOTH T HE PARTIES IS PROPERLY PRESENTED BEFORE, AND APPRECIATED BY, THE FIRST APPELLATE AUTHORITY, PRIOR TO ITS TRAVELLING TO, WHERE SO, AT THE INSTANCE OF EITHER PARTY, BEFORE THE TRIBUNAL, BEIN G THE FINAL FACT FINDING AUTHORITY. 3.2 IN VIEW OF THE FOREGOING, THEREFORE, THE MATTER , EVEN AS OBSERVED BY THE BENCH DURING HEARING, WARRANTS BEING RESTORED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY TO ADJUDICATE THE SAME AFRESH PER A SPEAKING ORDER, AN D AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES FOR STATIN G THEIR RESPECTIVE CASES, AND FOR WHICH THE ASSESSEE WOULD ASSURE US OF HIS ATTENDANCE. WIT HOUT DOUBT, HE WOULD, IN NOT AVAILING OF THE SAID OPPORTUNITY, ONLY BE ACTING TO HIS OWN DETRIMENT. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5 16 ' (51 0 70 89#: # ;1 0 1 <= ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2013 #4 0 3!) $# >'6 28 = , 2013 ! 0 D SD/- SD/- (B. R. MITTAL) (SANJAY ARORA) / JUDICIAL MEMBER #$ / ACCOUNTANT MEMBER MUMBAI; >' DATED : 28.05.2013 4 ITA NO.535/MUM/2011 (A.Y. 2002-03) MAJOR ASHOK KUMAR SETHI VS. ITO .'../ ROSHANI , SR. PS #4 0 -1E F#E)1 #4 0 -1E F#E)1 #4 0 -1E F#E)1 #4 0 -1E F#E)1/ COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -.*, / THE RESPONDENT . 3. G ( ) / THE CIT(A) 4. G / CIT - CONCERNED 5. EJD -1' , , / DR, ITAT, MUMBAI 6. DK( L / GUARD FILE. #4' #4' #4' #4' / BY ORDER, 8 88 8/ // /< < < < (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI