RAMESH R. CHHEDA, MUMBAI V. ASST CIT CIR 17(3), MUMBAI

ITA 6052/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8872 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 23-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Rule 8D; Set aside
• Section: 14A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBERAND SHR I RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. 6052 /MUM. /2018 ( ASSESSMENT YEAR : 20 1 2 13 ) RAMESH R. CHHEDA 4, PREM BHAVAN 234/36, BHAT BAZAR NARSEE NATHA STREET MUMBAI 400 009 PAN AAAPC6008J . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 17(3), MUMBAI . RESPONDENT ITA NO. 6053 /MUM. /2018 ( ASSESSMENT YEAR : 20 11 12 ) R ASIK K. CHHEDA 4, PREM BHAVAN 234/36, BHAT BAZAR NARSEE NATHA STREET MUMBAI 400 009 PAN AAAPC6008J . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 17(3), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI JOTHILAKSHMI NAYAK DATE OF HEARING 0 8 .01.2020 DATE OF ORDER 15.01.2020 2 RAMESH R. CHHEDA & RASIK K. CHHEDA O R D E R PER SAKTIJIT DEY, J.M. T H E AFORESAID APPEALS HAVE BEEN FILED BY TWO DIFFERENT ASSESSEES CHALLENGING TWO SEPARATE ORDERS , BOTH DATED 14 TH AUGUST 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 28, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2012 13. 2. SINCE THE APPEALS HAVE BEEN FILED INVOLVING COMMON ISSUES ARISING OUT OF IDENTICAL SET OF FACTS AND CIRCUMSTANCES, THEREFORE, AS A MATTER OF CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER A ND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. 3. WHEN THE APPEAL S W ERE CALLED FOR HEARING , NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE S TO REPRESENT THE CASE S . HOWEVER, APPLICATIONS SEEKING ADJOURNMENT HAVE BEEN PLACED ON RECORD. CONSIDERING THE NATURE OF DISPUTE, THE ASSESSEE S REQUESTED FOR ADJOURNMENT WAS REJECTED AND THE APPEALS WERE TAKEN UP FOR HEARING IN THE PRESENCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. 4. IN GROUNDS NO.1.1, 1.2 AND 1.3 OF BOTH THE APPEALS, WHICH ARE IDENTICALLY W ORDED, THE ASSESSEES HAVE CHALLENGED THE EX PARTE DISPOSAL OF THEIR APPEALS BY LEARNED COMMISSIONER (APPEALS). 3 RAMESH R. CHHEDA & RASIK K. CHHEDA 5. BRIEF FACTS COMMON IN BOTH THE APPEALS ARE, WHILE COMPLETING THE ASSESSMENT F OR THE IMPUGNED ASSESSMENT YEAR IN CASE OF BOTH T HE ASSESSEE S , THE ASSESSING OFFICER MADE DISALLOWANCE UNDER SECTION 14A R/W RULE 8D. FURTHER, THE ASSESSING OFFICER ALSO DISALLOWED ASSESSEES CLAIM OF EXPENDITURE WHILE COMPUTING SHORT TERM CAPITAL GAIN ON TRANSFER OF SHARES. CONTESTING THE AFORESAID DISALLOWANCE S , BOTH TH E ASSESSEES PREFERRED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. 6. AS COULD BE SEEN FROM THE IMPUGNED ORDERS PASSED BY THE LEARNED COMMISSIONER (APPEALS), SINCE , THE ASSESSEES EITHER DID NOT APPEAR OR SOUGHT ADJOURNMENT ON MORE THAN ONE OCCASIONS, HE PRO CEEDED TO DISPOSE OFF THE APPEALS EX PARTE CONFIRMING THE ADDITIONS/ DISALLOWANCE MADE BY THE ASSESSING OFFICER. 7. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE GROUNDS RAISED, THE ASSESSE ES ARE AGGRIEVED WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN DISPOSING OFF THE APPEALS EX PARTE AFTER REFUSING THE REQUEST OF THE ASSESSEES FOR ADJOURNING THE HEARING FOR A SHORT PERIOD. FURTHER, IT IS NOTICED FROM THE ORDER OF LEARNED COMMISS IO NER (APPEALS) ON THE FIRST DATE OF HEARING I.E., 12 TH FEBRUARY 2018, THE ASSESSEES DID NOT APPEAR. HOWEVER, ON SUBSEQUENT DATE S I.E., 20 TH MARCH 2018, AND 15 TH JUNE 2018, THE ASSESSEES APPEARED AND 4 RAMESH R. CHHEDA & RASIK K. CHHEDA SOUGHT ADJOURNMENT AND THE HEARING OF APPEALS W ERE ADJOURN ED TO 13 TH AUGUST 2018. AS COULD BE SEEN FROM THE GROUND NO.1.3, THOUGH, THE ASSESSEE DID NOT APPEAR BEFORE THE LEARNED COMMISSIONER (APPEALS) ON 13 TH AUGUST 2018, HOWEVER, HE APPEARED ON 14 TH AUGUST 2018 AND FURNISHED A LETTER SEEKING A SHORT ADJOURNMENT. IT IS FURTHER NOTICED THAT LEARNED COMMISSIONER (APPEALS) IGNORING THE REQUEST OF THE ASSESSEE HAS DISPOSED OFF THE APPEALS ON 14 TH AUGUST 2018 ITSELF. AFTER CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEES DES ERVE AN OPPORTUNITY TO ARGUE THEIR CASE ON MERIT S BEFORE LEARNED COMMISSIONER (APPEALS), AS VARIOUS ASPECTS RELAT ING TO THE DISPUTED ISSUES COULD NOT BE CANVASSED BEFORE LEARNED COMMISSIONER (APPEALS) DUE TO NON APPEARANCE OF THE ASSESSEES ON THE LAST DATE OF HEARING. ACCORDINGLY, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDERS OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUES RE LATING TO THE DISPUTED ADDITION/DISALLOWANCE BACK TO HIS FILE FOR DE NOVO ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. SIMULTANEOUSLY, WE ALSO DIRECT THE ASSESSEES TO APPEAR BEFORE LEARNED COMMISSIONER (APPEALS) AND CO OPERATE IN FINALIZING THE PROCEEDINGS BY PROPERLY REPRESENTING THEIR CASE ON MERIT S . WITH THE AFORESAID OBSERVATIONS, THE GROUNDS RAISED BY THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. 5 RAMESH R. CHHEDA & RASIK K. CHHEDA 8. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 15.01.2020 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI, DATED: 15.01.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI