JAIPAL B. SUNKARSETT, MUMBAI V. ITO 14(1)(3), MUMBAI

ITA 6132/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8676 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 10-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 10-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G KUTTY
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . .. . . .. . , ,, , ! ! ! ! , ' ' ' ' # $% # $% # $% # $% , ,, , & ! & ! & ! & ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER . / ITA NO. 6132/MUM./2010 ( &( ) '*) / ASSESSMENT YEAR : 200607 ) MR. JAIPAL B. SUNKARSETT 380/382, SUNKER SETT SMRUTI J.S.S. ROAD, GIRGAUM MUMBAI 400 002 .. +, / APPELLANT ( V/S INCOME TAX OFFICER WARD14(1)(3) EARNEST HOUSE NARIMAN POINT, MUMBAI 400 002 .... -.+, / RESPONDENT !+ . / PERMANENT ACCOUNT NUMBER AANPS1240B &( )0 1 2 / ASSESSEE BY : MR. M. SUBRAMANIAN !' 1 2 / REVENUE BY : MR. K.G. KUTTY (' 1 / DATE OF HEARING 10.10.2012 $ 34* 1 / DATE OF ORDER 12.10.2012 $ $ $ $ / ORDER # $% # $% # $% # $% , ,, , & ! & ! & ! & ! 5 5 5 5 / PER AMIT SHUKLA, J.M. THE PRESENT APPEAL PREFERRED BY THE ASSESSEE, IS DI RECTED AGAINST THE IMPUGNED ORDER DATED 21 ST MAY 2010, PASSED BY THE LEARNED COMMISSIONER (APPEALS)XXV, FOR THE QUANTUM OF ASSE SSMENT PASSED MR. JAIPAL B. SUNKARSETT 2 UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) MUMBAI, ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APP EAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APP EAL WITHOUT GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APP EAL WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS OF THE CA SE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN APPROVING THE EXP ARTE ASSESSMENT ORDER PASSED DETERMINING THE INCOME AT ` 24,05,170, AS AGAINST THE RETURNED INCOME OF ` 2,65,172. 2. THE ASSESSEE IS AN INDIVIDUAL, FILED ITS RETURN OF INCOME ON 28 TH JUNE 2006, DECLARING A TOTAL INCOME OF ` 2,65,000. THE SAID RETURN OF INCOME WAS DULY PROCESSED UNDER SECTION 143(1). THE ASSESS EES CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND, ACCORDINGLY, NOTICE UNDER SECTION 143(2) WAS ISSUED ON 5 TH JULY 2007. THEREAFTER, VARIOUS OTHER NOTICES HAVE BEEN ISSUED, DETAILS OF WHICH HAVE BEEN INCORPORATE D IN PAGE-1 OF THE ASSESSMENT ORDER. FINALLY, THE ASSESSING OFFICER PR OCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144. HE NOTED THAT THE ASS ESSEE HAS MADE INVESTMENT IN BONDS ISSUED BY NABARD FOR ` 21,40,000. SINCE THE ASSESSEE COULD NOT GIVE DETAILS FOR PURCHASE AND SO URCE THEREOF, HE ADDED THE SAME UNDER SECTION 69. 3. AGGRIEVED BY THE ORDER SO PASSED BY THE ASSESSING O FFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE COMMISSIONER (APPEALS), BUT WITHOUT ANY SUCCESS. THE COMMISSIONER (APPEALS) TOO CONFIRMED THE ACTION OF THE ASSESSING OFFICER AND DISMISSED THE ASSESSEE S APPEAL WITHOUT GOING INTO THE MERITS OF THE ADDITION. BEING AGGRIEVED, T HE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. MR. JAIPAL B. SUNKARSETT 3 4. LEARNED COUNSEL, ON BEHALF OF THE ASSESSEE, SUBMITT ED BEFORE US THAT ON IDENTICAL ISSUE AND ON SIMILAR FACTS AND CI RCUMSTANCES IN ASSESSEES BROTHERS CASE IN ITA NO. 6131/MUM./2010, FOR ASSES SMENT YEAR 200607, ORDER DATED 24 TH NOVEMBER 2011, THE TRIBUNAL HAS RESTORED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LEARNED COUNSEL, THEREFORE, PRAYED BEFORE US THAT THE PRESENT ISSUE BE RESTORE TO THE FILE OF THE ASSESSING OFFICER. 5. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, RELIED UPON THE ORDER PASSED BY THE COMMISSIONER (APPEALS) . 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS OF THE PARTIES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE MATERIAL PLACED ON RECORD. WE FIND THAT THE TRIBUNAL IN ASSESSEES BRO THERS CASE IN ITA NO. 6131/MUM./2010, ORDER DATED 24 TH NOVEMBER 2011, CITED SUPRA, ON IDENTICAL ISSUE AND ON SIMILAR FACTS AND CIRCUMSTAN CES, HAS RESTORED THE ENTIRE ISSUE TO THE FILE OF THE ASSESSING OFFICER F OR DENOVO ASSESSMENT. RELEVANT OBSERVATIONS AND FINDINGS GIVEN BY THE TRI BUNAL ARE REPRODUCED HEREIN BELOW:- 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUB MITS THAT THE A.O. HAS PASSED THE ASSESSMENT ORDER U/S.144 OF THE I.T. ACT. HE SUBMITS THAT THE ASSESSMENT ORDER WAS PASSED IN UNDUE HASTE BY THE A.O. WITHOUT GIVING PROPER OPPORTUNITY TO TH E ASSESSEE. HE TOOK US THROUGH THE ASSESSMENT ORDER AS WELL AS ORD ER OF THE LD. CIT (A) AND SUBMITS THAT MOST OF THE NOTICES ISSUED BY THE A.O. WERE RECEIVED BY THE ASSESSEE AFTER THE DATE OF HEA RING MENTIONED IN THE SAID NOTICES. HE SUBMITS THAT IN THE INTERE ST OF THE JUSTICE THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY TO REPRESE NT HIS CASE AND ENTIRE MATTER MAY BE SENT BACK TO THE A.O. FOR FRESH ADJUDICATION. THE LD. D.R. VEHEMENTLY OPPOSED THE PRAYER OF THE ASSESSEE. 3. WE FIND THAT THE ASSESSEE FILED THE RETURN OF I NCOME FOR THE A.Y. 2006-07 DECLARING TOTAL INCOME AT ` 1,59,634/- . THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY BY ISSUIN G NOTICE U/S.143(2) OF THE ACT. AS NOTED BY THE A.O. THE AS SESSEE WAS ISSUED NOTICES BUT THE ASSESSEE DID NOT MAKE ANY CO MPLIANCE. ON MR. JAIPAL B. SUNKARSETT 4 THE BASIS OF AIR INFORMATION THE A.O. MADE THE ADDI TION OF ` 5 LAKH IN RESPECT OF THE INVESTMENT MADE IN THE NABARD BON D ON 09.08.2005. THE A.O. PASSED THE ASSESSMENT ORDER E X-PARTE U/S.144 ON 15.12.2008. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT (A) RAISING THE GRIEVANCE THAT THERE IS NO JUSTIFICATION ON THE PART OF THE A.O. TO PASS THE E X-PARTE ORDER. THE LD. CIT (A) HAS TURNED DOWN THE PLEA OF THE ASSESSE E BY PUTTING HIS STAMP OF APPROVAL ON THE CONCLUSION OF THE A.O. THA T THE ASSESSEE WAS DELIBERATELY AVOIDING THE ASSESSMENT PROCEEDING S AND NOT WILLING TO CO-OPERATE. THE A.O. GAVE SUFFICIENT OP PORTUNITY. IT APPEARS THAT THE A.O. HAS CALLED FOR THE REMAND REP ORT IN WHICH THE PARTICULARS OF THE DATE OF NOTICES ARE GIVEN, WHICH ARE REPRODUCED ON PAGE NO.2 OF THE ORDER OF THE LD. CIT (A). SO F AR AS LAST NOTICE IS CONCERNED, THE DATE OF SHOW CAUSE NOTICE IS MENT IONED AS 13.12.2008, THE DATE OF DISPATCH OF THE SAID NOTICE IS 8.12.2008 AND DATE OF HEARING IS GIVEN AS 11.12.2008. NOTHIN G IS MENTIONED THOUGH THE LAST SHOW CAUSE NOTICE WAS SERVED ON THE ASSESSEE OR NOT? ADMITTEDLY, THE ASSESSEE IS SALARIED PERSON. SO FAR AS LAST NOTICE IS CONCERNED, WE FIND THAT THERE IS A CONTRA DICTION IN THE DATES GIVEN BY THE A.O. AS WELL AS BY THE LD. CIT ( A). IN OUR OPINION, THE LD. CIT (A) SHOULD NOT HAVE GONE TOO H ARSH TO REJECT THE PLEA OF THE ASSESSEE TO RESTORE THE MATTER TO T HE FILE OF THE A.O. 4. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE TO TALITY OF THE FACTS, IN OUR OPINION, THE PLEA OF THE ASSESSEE NEE DS TO BE ACCEPTED IN THE INTEREST OF JUSTICE. WE, ACCORDINGLY, SET A SIDE THE ORDER OF THE LD. CIT (A) AND RESTORE THE ENTIRE MATTER TO TH E FILE OF THE A.O. WITH A DIRECTION TO COMPLETE THE ASSESSMENT AFTER G IVING OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO- OPERATE THE A.O. FOR EARLY COMPLETION OF THE ASSES SMENT. THE A.O. SHOULD GIVE 15 DAYS NOTICE TO THE ASSESSEE AS IT IS NOTICE THAT VERY SHORT TIME WAS GIVEN TO MAKE COMPLIANCE . 7. CONSISTENT WITH THE AFORESAID VIEW TAKEN BY THE TRI BUNAL, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ASSESSMENT. NEEDLESS TO MENTION HERE THAT THE ASSES SING OFFICER IS DIRECTED TO GIVE DUE AND EFFECTIVE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO C OOPERATE WITH THE ASSESSING OFFICER IN FURNISHING ALL THE DETAILS AS ARE REQUIRED FOR COMPLETION OF THE ASSESSMENT. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. MR. JAIPAL B. SUNKARSETT 5 8. 0 7 &( )0 81 9:; # !' < 1 => ? 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. $ 1 4* @ A (7 12 TH OCTOBER 2012 4 1 ? ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER 2012 SD/- . .. . . .. . ! ! ! ! P.M. JAGTAP ACCOUNTANT MEMBER SD/- # # # # $% $% $% $% & ! & ! & ! & ! AMIT SHUKLA JUDICIAL MEMBER MUMBAI, A ( A ( A ( A ( DATED: 12 TH OCTOBER 2012 $ 1 -&#B CB* / COPY OF THE ORDER FORWARDED TO : (1) &( )0 / THE ASSESSEE; (2) !' / THE REVENUE; (3) D () / THE CIT(A); (4) D / THE CIT, MUMBAI CITY CONCERNED; (5) B'G -&&( , , / THE DR, ITAT, MUMBAI; (6) H) I / GUARD FILE. .B -& / TRUE COPY $( / BY ORDER - . JK / PRADEEP J. CHOWDHURY '0L &( J' / SR. PRIVATE SECRETARY 9 / = / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI