MUKESH K. DESAI, MUMBAI V. ITO WD 21(1)(3), MUMBAI

ITA 5783/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0548 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 27-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 5783/MUM/2016 (ASSESSMENT YEAR 2010-11) MUKESH K. DESAI, 9, 2 ND FLOOR, MADHUKUNJ, TEJPAL ROAD, VILE PARLE (EAST) MUMBAI 400 057 PAN:AABPD 7788D ...... APPELLANT VS. THE ITO-21(1)(3), BANKDRA KURLA COMPLEX, BANDRA (E) MUMBAI 400051. .... RESPONDENT APPELLANT BY : SHRI RAJESH SHAH RESPONDENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 01/11/2017 DATE OF PRONOUNCEMENT : 30/ 01/2018 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAI NING TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-37, MUMBAI DATED 27/06/2016, WHICH IN TURN ARISES OUT OF AN ORDER P ASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 29/04/2013. 2 ITA NO. 5783/MUM/2016 (ASSESSMENT YEAR 2010-11 2. ALTHOUGH IN THIS APPEAL, ASSESSEE HAS RAISED MUL TIPLE GROUNDS OF APPEAL, BUT THE PRELIMINARY GRIEVANCE IS AGAINST THE ACTION OF THE CIT(A) IN PASSING AN EX-PARTE ORDER WITHOUT TAKING INTO CONSIDERATION TH E SAY OF THE ASSESSEE. 3. NOTABLY, THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS FINALIZED BY THE ASSESSING OFFICER AT AN INCOME OF RS.2,31,88,49 0/- AS AGAINST THE RETURNED INCOME OF RS.18,33,434/-. THE VARIOUS ADDITIONS/DIS ALLOWANCES MADE WERE CARRIED IN APPEAL BEFORE THE CIT(A). THE CIT(A) N OTES THAT ASSESSEE DID NOT PUT IN APPEARANCE WHEN THE CASE WAS PUT UP FOR HEARING AND HE INFERRED THAT ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APP EAL. ACCORDINGLY, HE PROCEEDED TO DISPOSE OF THE APPEAL ON THE BASIS OF FACTS ON RECORD AND IN THAT CONTEXT HE NOTED THAT THE ABSENCE OF THE ASSESSEE S HOWED THAT ASSESSEE HAD NO MATERIAL TO SUBSTANTIATE THE GROUNDS OF APPEAL. ACCORDINGLY, HE AFFIRMED THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER A ND DISMISSED THE APPEAL OF THE ASSESSEE. 4. BEFORE US, THE LD.REPRESENTATIVE FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE WOULD BE SATISFIED IF THE MATTER IS RESTOR ED BACK TO THE FILE OF THE CIT(A) AND POINTED OUT THAT ON THE APPOINTED DATE O F HEARING AN APPLICATION FOR ADJOURNMENT WAS MOVED BEFORE THE CIT(A) AS THE CONC ERNED COUNSEL WAS UNWELL AND NOT AVAILABLE IN THE STATION; AND THE CI T(A) UNJUSTLY DECIDED EX- PARTE. THE LD.REPRESENTATIVE FOR THE ASSESSEE POIN TED OUT THAT THE LETTER OF ADJOURNMENT WAS DULY MOVED AND THE ACKNOWLEDGEMENT COPY OF SUCH LETTER DATED 07/06/2016 HAS ALSO BEEN FILED IN THE PAPER B OOK BEFORE US. 5. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJEC TION, IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER. 3 ITA NO. 5783/MUM/2016 (ASSESSMENT YEAR 2010-11 6. HAVING CONSIDERED THE RIVAL STANDS, WE FIND THAT THE CIT(A) HAS DISMISSED ALL THE GROUNDS RAISED BY THE ASSESSEE PRIMARILY NO TICING THE ABSENCE OF THE ASSESSEE AND HAS NOT DISCUSSED ANY OF THE ISSUES ON MERITS. BE THAT AS IT MAY, IN OUR VIEW, IT WOULD BE IN THE FITNESS OF THINGS T HAT THE ORDER OF THE CIT(A) IS SET-ASIDE AND THE MATTER IS REMITTED BACK TO HIS F ILE FOR ADJUDICATION AFRESH AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNIT Y OF BEING HEARD ON MERITS. THUS, WITHOUT GOING INTO THE MERITS OF THE VARIOUS ADDITIONS/DISALLOWANCES, THE ORDER OF THE CIT(A) IS SET-ASIDE AND THE APPEAL IS RESTORED BACK TO HIS FILE TO BE ADJUDICATED AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2018 . SD/- SD/- (RAM LAL NEGI) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 30/01/2018 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI