ARRIVA JEWELLERY, MUMBAI V. ACIT 24 (1), MUMBAI

ITA 5434/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1058 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 21-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MICHAEL JERALDLD
• Assessee Lawyers: APURVA R SHAH LD
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 ITA NO.5434/MUM/2018 M/S ARRIVA JEWELLERY ASSESSMENT YEAR-2014-15 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI VIKAS AWASTHY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5434/MUM/2018 ( / ASSESSMENT YEAR: 2014-15) M/S ARRIVA JEWELLERY 512A, PANCHRATNA MAMA PARMANAND MARG OPERA HOUSE, MUMBAI 400 004 / VS. ACIT - 24(1) R.NO.408, 4 TH FLOOR PIRAMAL CHAMBERS LALBAUG, MUMBAI 400 012 ./ ./PAN/GIR NO. AAIFA-7187-Q ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI APURVA R.SHAH- LD. AR / RESPONDENT BY : SHRI S. MICHAEL JERALD- LD. DR / DATE OF HEARING : 18/12/2019 / DATE OF PRONOUNCEMENT : 18/12/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2014-15 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME-TAX (APPEALS)-36, MUMBAI, [IN SHORT REFERRED TO AS CIT (A)], APPEAL NO. CIT(A)- 2 ITA NO.5434/MUM/2018 M/S ARRIVA JEWELLERY ASSESSMENT YEAR-2014-15 36/IT 402/ACIT-24(1)/2016-17 DATED 30/07/2018 ON FOLLOWING GROUNDS OF APPEAL: - THE COMMISSIONER OF INCOME TAX (APPEALS) -36 ERRED IN: 1.DISMISSING THE APPEAL ON GROUND ON NON-APPEARANCE AND NON-COMPLIANCE. HE ERRED IN NOT APPRECIATING THAT IN FORM 35 THE APPELLANT HAD SPECIFICALLY OPTED TO NOT RECEIVE NOTICES BY EMAIL AND HAD ALSO MENTIONED A CORRESPON DENCE ADDRESS WHICH WAS DIFFERENT FROM THE REGISTERED ADDRESS OF THE APPELL ANT. HE ERRED IN SENDING NOTICES BY EMAIL AND IN SENDING THEM PHYSICALLY AT AN ADDRESS OTHER THAN WHAT WAS OPTED FOR BY THE APPELLANT. 2.CONFIRMING A DISALLOWANCE OF 45% OF ADMINISTRATIV E AND OTHER EXPENSES. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR ASSESS EE, AT THE OUTSET, DRAWING OUR ATTENTION TO THE GROUND-1 OF THE APPEAL , SUBMITTED THAT HEARING NOTICES WERE NOT SENT BY LEARNED FIRST APPELLATE AU THORITY IN THE MANNER SPECIFIED IN FORM NO. 35 WHICH RESULTED INTO EX-PAR TE DISMISSAL OF ASSESSEES APPEAL. THE LD. AR ALSO PLEADED FOR REAS ONABLE ESTIMATION OF DISALLOWANCES. THE LD. DR, ON THE OTHER HAND, SUBMI TTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) TO T AKE A VIEW IN THE MATTER. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASS ESSEE HAS BEEN SADDLED WITH ADHOC DISALLOWANCE OF ADMINISTRATIVE & OTHER EXPENDITURE TO THE EXTENT OF 45% IN AN ASSESSMENT FRAMED U/S 143(3 ) ON 16/12/2016. UPON FURTHER APPEAL, THE ASSESSEE COULD NOT APPEAR BEFORE LEARN FIRST APPELLATE AUTHORITY, APPARENTLY FOR REASONS STATED BY LD. AR, BEFORE US. THE SAME RESULTED INTO EX-PARTE DISMISSAL OF THE APPEAL . KEEPING IN VIEW THE PLEADING MADE BEFORE US AND KEEPING IN VIEW PRINCIP LES OF NATURAL JUSTICE, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FI LE OF LD. CIT(A) FOR ADJUDICATION DE-NOVO WITH A DIRECTION TO THE ASSESSEE TO SUBSTANTIATE H IS 3 ITA NO.5434/MUM/2018 M/S ARRIVA JEWELLERY ASSESSMENT YEAR-2014-15 CLAIM. NEEDLESS TO ADD THAT ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE GRANTED TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL STAND ALLOWED FOR STAT ISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2019. /- SD/- SD/- (VIKAS AWASTHY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18/12/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#() , ) , / DR, ITAT, MUMBAI 6. '+,- / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.