SUNIL MEHRA, MUMBAI V. ITO 23(1)(2), MUMBAI

ITA 5913/MUM/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2228 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 17-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 24-08-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO 5913/MUM/2011 ASSESSMENT YEAR: 2005-06 SUNIL MEHRA. HARICHAND MILLS COMPOUND, LBS MARG, VIKROLI(W), MUMBAI- 400 076. PAN:- AAKPM5773C VS. THE IT O - 23( 1 )(2 ) , BANDRA KURLA COMPLEX, MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. SHILPI JAIN RESPONDENT BY : SHRI. A.K.KARDAM DATE OF HEARING: 2 0 / 10 / 2016 DATE OF PRONOUNCEMENT: 31/10/20 16 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 25/05/2011 PASSED BY THE LD. CIT(APPEALS)-33 MUMBAI FOR THE ASST. YEAR 2005-06 WHEREBY THE LD. CIT(A) PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. STILL AGGRIEVED, THE ASSESSEE IN APPEAL BEFORE T HE TRIBUNAL RAISING THE FOLLOWING GROUNDS OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN :- 2 ITA NO 5913/MUM/2011 ASSESSMENT YEAR: 2005-06 I. NOT GIVING AN OPPORTUNITY OF BEING HEARD II. CONFIRMING THE ADDITION OF RS. 18,14,129/- TO I NCOME FROM HOUSE PROPERTY BY ADOPTING THE MARKET RENT WHEN SOM E OF THE UNITS WERE UNDER THE TENANCY LAW AND IN LITIGATION. III. CONFIRMING THE ADDITION OF: 1. EXPENSES OF RS. 1,47,280 (BEING TELEPHONE BILLS NOT SUBMITTED) 2. TELEPHONE EXPENSES OF RS. 8,923 (59,490@15%), 3. TRAVELLING EXP OF RS. 11,812 (78,746 @15%), 4. VEHICLE EXP OF RS. 31,626 (2,10,840 @ 15%) 5. MEMBERSHIP & SUBSCRIPTION OF RS. 52,897 (100% DISALLOWED) & 6. SALARIES & WAGES OF RS. 42, 168 (FOR WANT OF DET AILS OF SALARY & WAGES OUT OF RS. 2,17,164 CLAIMED) ANY CONSEQUENTIAL RELIEF, TO WHICH THE APPELLANT MA Y BE ENTITLED UNDER THE LAW IN PURSUANCE OF THE AFORESAID GROUNDS OF APPEAL, OR OTHERWISE, MAY THUS BE GRANTED. 3. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSES SEE (AR) AT THE OUTSET SUBMITTED THAT THE IMPUGNED ORDER IS BAD IN LAW, AS THE SAME HAS BEEN PASSED IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE A SSESSEE WAS NOT AFFORDED REASONABLE OPPORTUNITY OF BEING HEARD. HENCE THE OR DER IS LIABLE TO BE SET ASIDE. 4. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESE NTATIVE (DR) SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEAR ON THE DATE OF HEARING, THE ASSESSEE CANNOT TAKE THE PLEA THAT THE LD. CIT (A) HAS WRONG LY PROCEEDED EX PARTE WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO G ONE THROUGH THE MATERIAL PLACED BEFORE US. WE NOTICE THAT THE APPEAL WAS FIX ED FOR HEARING ON 11.9.2009 3 ITA NO 5913/MUM/2011 ASSESSMENT YEAR: 2005-06 AND THE NOTICE TO THIS EFFECT WAS ISSUED 24.8.2009. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE SOUGHT ADJOURNMENT WITH THE RE QUEST TO POST THE APPEAL FOR HEARING BY THE END OF OCTOBER, 2009. THEN AFTER A G AP OF MORE THAN ONE YEAR, NOTICE WAS AGAIN ISSUED BY THE LD. CIT(A) ON 12.5.2 011 DIRECTING THE ASSESSEE TO APPEAR ON 25.05.2011 (WRONGLY TYPED AS 25.02.201 1). SINCE, ON 25. 05.2011 NONE APPEARED ON BEHALF OF THE ASSESSEE, THE LD. CI T(A) DECIDED THE APPEAL EX PARTE . IT IS ALSO NOT CLEAR FROM THE IMPUGNED ORDER THAT NOTICE DATED 12.5.2011 WAS DULY SERVED UPON THE ASSESSEE. THE AFORESAID FA CTS SUGGEST THAT THE ASSESSEE WAS NOT GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD AND THE ORDER WAS PASSED IN VIOLATION OF ONE OF THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY. WE ARE THEREFORE, OF THE CONSIDERED VIEW THAT THE A SSESSEE SHOULD GET AN OPPORTUNITY TO PRESENT HIS CASE BEFORE THE FIRST AP PELLATE AUTHORITY. HENCE, WE ALLOW THE FIRST GROUND OF APPEAL OF THE ASSESSEE IN THE INTEREST OF JUSTICE AND WITHOUT DECIDING THE APPEAL ON MERIT, SEND THE APPE AL BACK TO THE LD. CIT(A) FOR ADJUDICATING THE SAME AFRESH AFTER GIVING A REASONA BLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT/ASSESSEE. THE APPEAL IS DISP OSED OF ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL FOR THE ASS ESSMENT YEAR 2005-06 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:31/10/2016 4 ITA NO 5913/MUM/2011 ASSESSMENT YEAR: 2005-06 / 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 PRAMILA