WILFRED J. MASCARENHAS, MUMBAI V. ITO 12(1)(2), MUMBAI

ITA 540/MUM/2011

• Counselvise Citation: 54019914 RSA 2011
• Duration Of Justice: 2 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 19-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P PATHAK
• Assessee Lawyers: A K LAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 539/MUM/2011 ASSESSMENT YEAR: 2007-08 CYNTHIA WILFRED MASCARENHAS C/O R.K. SHAH & CO., C.AS. 1 ST FLOOR, LALMANI C.H.S. LTD., 25/31, DR. ATMARAM MERCHANT ROAD, BHULESHWAR, MUMBAI- 400 002 PAN :AADPM 0945 M VS. ITO 12 (1)(3) EARNESH HOUSE, NARIMAN POINT. MUMBAI 400 021 (APPELLANT) (RESPONDENT) ITA NO. 540/MUM/2011 ASSESSMENT YEAR: 2007-08 WILFRED J. MASCARENHAS C/O R.K. SHAH & CO., C.AS. 1 ST FLOOR, LALMANI C.H.S. LTD., 25/31, DR. ATMARAM MERCHANT ROAD, BHULESHWAR, MUMBAI- 400 002 PAN :AADPM 0945 M VS. ITO 12 (1)(3) EARNESH HOUSE, NARIMAN POINT. MUMBAI 400 021 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A. K. LAL RESPONDENT BY : SHRI C. P. PATHAK DATE OF HEARING : 19.09.2013 DATE OF PRONOUNCEMENT : 25.09.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THESE APPEALS FILED BY THE ASSESSEES ARE DIRECTED AGAINST THE ORDERS OF THE LD.CIT(A)-23, MUMBAI BOTH DATED 19.11.2010 FOR THE ASSESSMENT YEAR 2007-08. SINCE THE ISSUES INVOLVED IN BOTH THE APPEALS ARE SIMILAR, TH E SAME ARE DISPOSED OFF BY THIS COMMON ORDER. 2. IN BOTH THE APPEALS, THE ASSESSEES HAVE RAISED V ARIOUS GROUNDS WHICH RELATE TO THE ORDERS PASSED BY THE LD.CIT(A) CONFIRMING THE ADDIT IONS MADE BY THE AO IN THE EX PARTE ITA NO. 539/MUM/2011 ITA NO. 540/MUM/2011 CYNTHIA WILFRED MASCARENHAS WILFRED J. MASCARENHAS ASSESSMENT YEAR: 2007-08 2 ASSESSMENT ORDERS PASSED U/S 144 OF THE INCOME TAX ACT. IT IS OBSERVED THAT DURING THE FIRST APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), E VEN AFTER PROVIDING SEVERAL OPPORTUNITIES TO THE ASSESSEE, EXCEPT THE LETTER SE EKING FOR ADJOURNMENT VIDE LETTERS DATED 20.08.2010 AND 22.09.2010 SIGNED BY THE PROPRIETOR OF R.K. SHAH & CO. CHARTERED ACCOUNTANTS, NO ATTENDANCE HAS BEEN FORTHCOMING NOR ANY WRITTEN SUBMISSIONS FILED. THE LD.CIT(A) AFTER RECORDING THAT ADJOURNMENTS WERE GR ANTED ALTHOUGH NO LETTER OF AUTHORITY HAS BEEN FILED BY THE SAID CHARTERED ACCOUNTANTS, D ISPOSED OFF THE APPEAL EX PARTE ON THE BASIS OF MATERIALS ON RECORD. AGGRIEVED BY THE IMPU GNED ORDERS, THE ASSESSEE ARE IN APPEAL BEFORE US. 3. BEFORE US, THE LD. A.R. HAS STATED THAT THE ASSE SSEES IN THE RESPECTIVE APPEALS ARE WIFE & HUSBAND AND BOTH OF THEM HAVE LEFT INDIA ON 26.01.2000 AND GONE TO AUKLAND, NEWLAND FOR EMPLOYMENT AND HAVE BEEN STAYING THERE SINCE THEN. INITIALLY THE ASSESSES HAVE GIVEN GENERAL POWER OF ATTORNEY TO ONE MR. CYR IL CASTELINO WHO ALSO HAS LEFT INDIA IN 2007. THE CHARTERED ACCOUNTANTS TO WHOM THE INCOME TAX FILES HAVE BEEN GIVEN ALSO SHIFTED THEIR PREMISES FROM THEIR OFFICE DURING THE SAID PERIOD. DURING THE COURSE OF THE PROCEEDINGS, THE LD. A.R. HAS ALSO FILED THE AFFIDA VITS SIGNED BY THE ASSESSEES BOTH DATED 04.02.2011 CONTAINING THE SAID REASONS FOR THE NON- COMPLIANCE DURING THE ASSESSMENT /APPELLATE PROCEEDINGS. ON THE OTHER HAND, THE LD. D.R. HAS POINTED OUT THAT THE REASONS STATED BY THE ASSESSEES ARE NOT JUSTIFIED BUT ONLY INDICATE THE NON-COOPERATING ATTITUDE OF THE ASSESSEE. 4. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, THOUGH THE REASONS GIVEN IN THE AFFIDAVIT FILED BY THE ASSESSE ES ARE NOT COMPLETELY CONVINCING US FOR THE NON-COMPLIANCES OF THE NOTICES DURING THE ASSES SMENT /APPELLATE PROCEEDINGS, HAVING DUE REGARD TO THE PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE OPINION THAT IT WILL BE JUST AND PROPER TO SET ASIDE THE ENTIRE ASSESSMENTS BACK TO THE FILE OF THE AO FOR DECIDING THE ISSUES AFRESH AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES PLACING ALL THE MATERIALS TO SUBSTANTIATE THEIR CLA IM. CONSIDERING THE FACT THAT THE REASONS CITED BY THE ASSESSEES IN THE AFFIDAVITS ARE NOT CO NVINCING, AS AGREED BY THE LD. A.R., WE IMPOSE A COST OF RS.5000/- EACH ON BOTH THE ASSESSE ES TO BE PAID TO THE REVENUE. AFTER PRODUCING THE RECEIPT FOR THE PAYMENT OF THE SAID C OST, THE AO WILL HEAR THE MATTERS AFRESH IN THE AFORESAID MANNER. WE DIRECT AND ORDER ACCORD INGLY. ITA NO. 539/MUM/2011 ITA NO. 540/MUM/2011 CYNTHIA WILFRED MASCARENHAS WILFRED J. MASCARENHAS ASSESSMENT YEAR: 2007-08 3 5. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE S ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF SEPTEMBER, 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 25.09.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR G BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MU MBAI.