ARCHANA N . PATHAK, MUMBAI V. DCIT CC 9, MUMBAI

ITA 5791/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9848 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 27-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: KEYURI DESA I LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

ITA NO 5791/MUM/2016 ARCHANA N. PATHAK ASSESSMENT YEAR 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 5791/MUM/2016 ( / ASSESSMENT YEAR: 2010-11) ARCHANA N. PATHAK 501,SUYOG DARSHAN SANJEEV ENCLAVE LANE SEVEN BUNGLOW ANDHERI(W) MUMBAI 400 053 / VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 9 AAYKAR BHAVAN M.K.ROAD MUMBAI -400 020 ! ./ ./PAN/GIR NO. AKBPP-9335-L ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : KEYURI DESAI, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 17/08/2017 / DATE OF PRONOUNCEMENT : 23 /08/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2010-11 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX ITA NO 5791/MUM/2016 ARCHANA N. PATHAK ASSESSMENT YEAR 2010-11 2 (APPEALS)-48 [CIT(A)], MUMBAI DATED 30/06/2016 QUA CONFIRMATION OF PENALTY OF RS.1,05,512/- U/S 271(1)(C) OF THE INCOM E TAX ACT, 1961. THE ASSESSEE CONTEST THE PENALTY ON MERITS AS WELL AS O N LEGAL GROUNDS SINCE THE IMPUGNED ORDER IS AN EX-PARTE ORDER. 2. FACTS LEADING TO IMPOSITION OF PENALTY ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL DERIVING RENTAL & INTEREST INCOME, WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 22/10/2012. THE ASSESSEE SUFFERED CERTAIN ADDITIONS OF RS.3,41,462/- UNDER THE HEAD CAPITAL GAINS , AGAINST WHICH PENALTY PROCEEDINGS WERE INITIATED IN THE QUANTUM A SSESSMENT. FINALLY, THE ASSESSEE HAS BEEN SADDLED WITH A PENALTY OF RS. 1,05,512/- VIDE PENALTY ORDER DATED 13/03/2013. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 30/06/2 016. THE IMPUGNED ORDER IS AN EX-PARTE ORDER SINCE THE NOTICES OF HEARING SENT TO ASSESSEE RETURNED BACK UNDELIVERED AND NO ALTERNATIVE ADDRES S WAS PROVIDED BY THE ASSESSEE FOR SERVICE OF NOTICE WHICH LED THE LD . CIT(A) TO CONFIRM THE STAND OF LD. AO ON MERITS. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NA TURAL JUSTICE. THE LD. AR CONTENDED THAT THE ASSESSEE STOOD FAIR CHANCE OF CO NTESTING THE PENALTY AND THEREFORE, IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE ITA NO 5791/MUM/2016 ARCHANA N. PATHAK ASSESSMENT YEAR 2010-11 3 SAME BEFORE LD. FIRST APPELLATE AUTHORITY MAY BE GR ANTED TO THE ASSESSEE. 5. PER CONTRA , THE LD. DR OPPOSED THE SAME BY DRAWING OUR ATTENT ION TO THE FACT THAT THE NOTICES SENT FOR HEARING CAME BACK UNDELIVERED AND THE ASSESSEE DID NOT CARE TO PURSUE HIS APPEAL BEFO RE LD. CIT(A) AND THEREFORE, DEBARRED FROM TAKING THIS STAND. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS SETTLED LAW THAT PRINCIPL ES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFECTED PARTY IS GRANTE D SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUS TICE, WE RESTORE THE MATTER BACK TO LD.CIT(A) FOR DE NOVO ADJUDICATION AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. 7. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 23. 08.2017 SR.PS:- THIRUMALESH ITA NO 5791/MUM/2016 ARCHANA N. PATHAK ASSESSMENT YEAR 2010-11 4 ! / 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