BHARAT C. GANDHI, MUMBAI V. ADDL CIT RG 13(1), MUMBAI

ITA 5824/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9392 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-10-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 18-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M KHAREMR S S RANA
• Keywords: Opportunity of being heard
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B: MUMBAI BEFORE SHRI PRAMOD KUMAR (AM) AND SHRI R.S. PADVEKAR (JM) ITA NO. 5824/MUM/2008 (ASSTT. YEAR : 2005-06) BHARAT C. GANDHI APPELLANT DARSHAN ROADLINES MANINE HOUSE, 93, DR. MAHESHWARI ROAD, CHINCH BUNDER, MUMBAI - 9 PAN : AAFG9238F V/S. ADDL. COMMISSIONER OF INCOME TAX RESPONDENT RANGE 13(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 APPELLANT BY : NONE RESPONDENT BY : MR. M. KHARE/MR. S.S. RANA (DR) : O R D E R : PER R.S. PADVEKAR, J.M THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE IMPUGNED ORDER OF THE LD CIT(A)-XIII, MUMBAI DATED 13.6.2008 FOR TH E A.Y. 2005-06. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN PASSING EXPARTE ORDER WITHOUT GIVING YOUR APPELLANT PROPER OPPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LEARN ED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE U/S 40A(3) OF THE AC T OF RS. 36,895/- 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LEARN ED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF INSURANCE PREMIUM IN RESPECT OF NEW VEHICLE PURCHASED DURING THE YEAR AND REASON RECORD ED FOR THE SAME ARE CONTRARY TO THE PROVISIONS OF LAW. ITA NO. 5824/MUM/2008 2 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LEARN ED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 93,752/- IN R ESPECT OF PAYMENTS MADE TO RTO FOR OFFENCES UNDER MOTOR VEHICLE ACT. WHEN THIS APPEAL WAS CALLED FOR HEARING ON 7.1.2010 , THE LD D.R. FOR THE REVENUE WAS PRESENT. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. FROM THE RECORD, IT IS SEEN THAT EARLIER THIS CASE WAS ADJOU RNED AT THE REQUEST OF THE COUNSEL. SUBSEQUENTLY, AS THE BENCH WAS NOT FUNCTI ONING, THE PARTIES WERE INFORMED THROUGH NOTICE BOARD. THE ASSESSEE HAS NO T EVEN MOVED THE APPLICATION FOR AN ADJOURNMENT. WE, THEREFORE, DEC IDE TO DISPOSE OF THIS APPEAL IN THE ABSENCE OF THE ASSESSEE ON MERITS. 3. THE FACTS WHICH REVEAL FROM THE RECORD ARE AS UN DER : THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPO RT CONTRACT UNDER THE NAME AND STYLE AS M/S. DARSHAN ROADLINES. THE ASSE SSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 81,22,178/-. THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND ASSESSMENT O F THE ASSESSEE WAS COMPLETED U/S. 143(3). THE A.O MADE CERTAIN ADDITI ONS TO THE INCOME OF THE ASSESSEE AND FINALLY DETERMINED THE TOTAL INCOME OF RS.92,85,461/-. BEING AGGRIEVED BY THE ASSESSMENT FRAMED BY THE A.O, THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD CIT(A). IT APPEARS THAT THE LD CIT(A) DISPOSED OF THE APPEAL OF THE ASSESSEE VIDE ORDER D T. 13.6.2008 EX-PARTE BY NOTING AS UNDER : THE CASE WAS FIXED TWICE, BUT NONE APPEARED. THER E WAS NO RESPONSE FROM THE APPELLANT. I AM, THEREFORE, PROCEEDING TO DISPOSE THE APPEAL ON MERITS. THE LD CIT(A) HAS NOT AT ALL GIVEN ANY DETAILS IN R ESPECT OF THE PROPER SERVICE OF THE NOTICE ON THE ASSESSEE. PROPER SERVICE OF T HE NOTICE IS SINE-QUO-NONE BEFORE DECIDING ANY MATTER BY THE QUASI-JUDICIAL AU THORITY OR JUDICIAL AUTHORITY. IN OUR OPINION, THE LD CIT(A) COULD HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE. WE, THEREFORE, CONSIDER IT FIT TO RESTOR E THE ENTIRE MATTER TO THE FILE OF THE LD CIT(A) TO DISPOSE OF THE SAME ON MERIT A FTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER T HE PRINCIPLES OF NATURAL ITA NO. 5824/MUM/2008 3 JUSTICE. ACCORDINGLY, THE ORDER OF THE LD CIT(A) I S SET ASIDE TO THE EXTENT OF GROUNDS RAISED BEFORE US. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DAY OF JANUARY , 2010. SD/- SD/- (PRAMOD KUMAR) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 21ST DAY OF JANUARY , 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT , 3.THE CIT(A)- XIII, MUMBAI 4.THE CIT -13, MUMBAI 5.THE DR, B BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. US DATE INITIALS 1. DRAFT DICTATED ON 7/1/10 --------------- SR.P.S. 2. DRAFT PLACED BEFORE AUTHORITY 8/1/10 --------- ----- SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S ITA NO. 5824/MUM/2008 4 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----