GOPALDAS SHANKARLAL AGRAWAL, MUMBAI V. ITO17 (1)(5), MUMBAI

ITA 6210/MUM/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8030 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HOSHANG BOMAN IRANI
• Keywords: Search and seizure; Opportunity of being heard; Set aside
• Section: 147; 143(1); 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “G”, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No. 6210/MUM/2019 Assessment Year: 2009-10 ITA No. 6211/MUM/2019 Assessment Year: 2010-11 ITA No. 6212/MUM/2019 Assessment Year: 2011-12 & ITA No. 6213/MUM/2019 Assessment Year: 2012-13 Shri Gopaldas Shankarlal Agarwal, 2502, Shubhada CHS Ltd., Sir Pochkhanwala Road, Worli, Mumbai - 400030 PAN: ABEPA4674P Vs. ITO-17(1)(5), Room No. 117, 1 st Floor, Aaykar Bhavan, Maharshi Karve Road, Mumbai - 400020 (Appellant) (Respondent) Assessee by : Shri Poojan Mehta (AR) Revenue by : Shri Hoshang Boman Irani (DR) Date of Hearing : 10/11/2021 Date of Pronouncement: 22/11/2021 O R D E R PER SAKTIJIT DEY, JM Captioned appeals by the same assessee arise out of four separate orders, all dated 28.02.2019, of learned Commissioner of Income Tax (Appeals)- 28, Mumbai for the assessment years 2009-10, 2010-11, 2011-12 and 2012- 13. 2 ITA Nos. 6210-6213/MUM/2019 Assessment Years: 2009-10, 2010-11, 2011-12 & 2012-13 2. The Registry has pointed out delay of 150 days in filing these appeals. Seeking condonation of delay, assessee has filed a petition supported by an affidavit. After perusing the averments of the assessee, we are convinced that the delay in filing the appeals was due to reasonable cause. Accordingly, we condone the delay and admit the appeals for adjudication. All these appeals contain identical grounds, reading as under:- 1. i) On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in disposing off the appeal ex-party without allowing effective, sufficient and reasonable opportunity of hearing to the Appellant and thereby further erred in dismissing the appeal in summary manner. ii) On the facts and in the circumstances of the case and in law, the ld. CIT(A) failed to appreciate that:- a) the notices of hearing has not reached in the hands of the Appellant since the building was demolished for redevelopment and as such the Appellant was prevented by sufficient and reasonable cause from attending the hearing of appeal, and b) The ld. CIT(A) ought to have allowed at least one more opportunity of hearing to the Appellant before passing the ex-parte order in the fairness of the law. iii) In reaching to the conclusion and dismissing the appeal ex- party the ld. CIT(A) failed to consider relevant factors, considerations, principles and evidences while he was overwhelmed, influenced and prejudiced by irrelevant considerations and factors. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in not disposing off the ground Nos. 1 to 5 raised by the Appellant in the appeal without discussing these grounds on the merit of the case. 3 ITA Nos. 6210-6213/MUM/2019 Assessment Years: 2009-10, 2010-11, 2011-12 & 2012-13 3. Briefly the facts are, the assessee is an individual. For the assessment years under dispute, assessee had filed his returns of income in regular course which were processed under section 143(1) of the Act. Subsequently, based on information received in course search and seizure operation conducted in case of Bhagdiya group of cases indicating that cash payments were made to the assessee, the assessing officer (AO) reopened the assessment under section 147 of the Act. Ultimately, assessments were completed by making additions in different assessment years as under:- Assessment year 2009-10 Rs. 25,00,000/- Assessment year 2010-11 Rs. 60,00,000/- Assessment Year 2011-12 Rs. 23,25,000/- Assessment year 2012-13 Rs. 90,00,000/- 4. Contesting the aforesaid additions, assessee preferred appeals before leanred Commissioner (Appeals). However, by the impugned orders, learned Commissioner (Appeals) decided the appeals ex-parte sustaining the additions made by the AO. 5. We have heard the parties and perused the materials on record. As could be seen from the grounds raised, the primary grievance of the assessee is against ex-parte disposal of the appeals without providing a reasonable opportunity of being heard. Further, the assessee has also raised the issue of non disposal of the grounds raised on merits. On perusal of impugned orders of learned Commissioner (Appeals), it is evident, he has disposed of the appeals ex-parte in absence of the assessee. Though, learned Commissioner (Appeals) has alleged that the notices issued through post could not be served on the 4 ITA Nos. 6210-6213/MUM/2019 Assessment Years: 2009-10, 2010-11, 2011-12 & 2012-13 assessee and there was no response to notice sent in the e-mail address, however, it is not forthcoming whether genuine attempt was made to serve notice on the assessee. Thus, apparently, there is violation of rules of natural justice. Further, on a reading of paragraph 4.1 of the first appellate order, it becomes very much clear, though, learned Commissioner (Appeals) has given an impression that he has decided the grounds raised on merits, however, in reality, he has decided the appeals in summary manner and in limine. The orders passed by learned Commissioner (Appeals) on the grounds raised are bereft of reasoning. Thus, in our considered opinion, learned Commissioner (Appeals) has not decided the appeals in accordance with section 251 of the Act. In view of the aforesaid, we are inclined to set aside the impugned orders of learned Commissioner (Appeals) and restore the issues back to his file for de-novo adjudication. Learned Commissioner (Appeals) should do well to decide the appeals on merits backed by proper reasoning after providing due and reasonable opportunity of being heard to the assessee. Assessee is also directed to respond to the notice to be issued by learned Commissioner (Appeals) and represent the appeal in proper and effective manner, so as to facilitate the disposal of appeals. Grounds are allowed for statistical purposes. 6. In the result, appeals are allowed for statistical purposes. Order pronounced in the open court on 22 nd November, 2021. Sd/- Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 22/11/2021 5 ITA Nos. 6210-6213/MUM/2019 Assessment Years: 2009-10, 2010-11, 2011-12 & 2012-13 Alindra, PS आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //True Copy// उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण, म ुंबई / ITAT, Mumbai