SHAMIM BANO RATHI, MUMBAI V. ASST CIT CIR 20(3), MUMBAI

ITA 6306/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0217 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 26-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: G P MEHTA LD
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 143(3); 142(1); 147; 148

Judgement Text

ITA NO 6306/MUM/2016 SHAMIM BANO RATHI ASSESSMENT YEAR 2006-07 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 6306/MUM/2016 ( / ASSESSMENT YEAR: 2006-07) SHAMIM BANO RATHI C/O G.P.MEHTA & CO., CAS 807 TULSIANI CHAMBERS 212, NARIMAN POINT MUMBAI 400 021 / VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 20(3) 5 TH FLOOR PIRAMAL CHAMBERS PAREL MUMBAI -400 013 ! ./ ./PAN/GIR NO. AAAPR-9202-P ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : G.P.MEHTA, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 16/08/2017 / DATE OF PRONOUNCEMENT : 18 /08/2017 ITA NO 6306/MUM/2016 SHAMIM BANO RATHI ASSESSMENT YEAR 2006-07 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2006-07 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-37 [CIT(A)], MUMBAI DATED 25/07/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS U/S 56(2). THE ASSESSEE, IN ITS G ROUNDS OF APPEAL, HAS CONTESTED THE IMPUGNED ORDER ON LEGAL GROUNDS AS WE LL AS ON MERITS SINCE THE IMPUGNED ORDER IS AN EX-PARTE ORDER. 2. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS SUBJECTED TO AN ASSESSMENT U/S 143(3) READ WITH SECTION 147 FOR IMPUGNED AY ON 27/03/2014 WHERE THE INCOME OF THE A SSESSEE WAS DETERMINED AT RS.89,39,880/- AFTER ADDITION OF RS.2 4 LACS U/S 56(2). CONSEQUENTLY, NOTICE U/S 148 DATED 22/03/2013 WAS I SSUED TO THE ASSESSEE WHICH WAS FOLLOWED BY NOTICE U/S 143(2) & 142(1) ALONG WITH QUESTIONNAIRE. THE CASE OF THE ASSESSEE WAS SUBJECT ED TO REASSESSMENT PROCEEDINGS SINCE IT CAME TO THE NOTICE OF THE DEPA RTMENT THAT CERTAIN CAPITAL GAINS ACCRUED TO THE ASSESSEE HAS ESCAPED A SSESSMENT IN VIEW OF THE FACT THAT THE SAME WAS NOT OFFERED BY THE AS SESSEE IN HER RETURN OF INCOME. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 25/07/2 016 WHICH IS AN EX- PARTE ORDER SINCE THE ASSESSEE SOUGHT SEVERAL ADJOURNMENT S AND DID NOT MAKE ANY SUBMISSIONS, WHICH LED THE LD. CIT(A) TO C ONFIRM THE STAND OF ITA NO 6306/MUM/2016 SHAMIM BANO RATHI ASSESSMENT YEAR 2006-07 3 LD. AO. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEA L BEFORE US AND CONTEST THE STAND OF LD. CIT(A) ON TECHNICAL GROUND S AS WELL AS ON MERITS. 4. THE LD. REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HER CASE BEFORE LD.CIT(A) AND THEREFORE, THE SAME S TOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTIC E. THE LD. AR PLEADED FOR ANOTHER OPPORTUNITY TO CONTEST THE ISSUES BEFORE LD . FIRST APPELLATE AUTHORITY. 5. PER CONTRA, THE LD. DR OPPOSED THE SAME BY DRAWI NG OUR ATTENTION TO THE FACT THAT THE ASSESSEE WAS PROVIDED WITH SUF FICIENT OPPORTUNITIES OF BEING HEARD ON VARIOUS OCCASIONS BUT EVERY TIME ADJ OURNMENT WAS SOUGHT AND NO EFFORTS WERE MADE TO REPRESENT THE CA SE AND THEREFORE, THE APPEAL HAS RIGHTLY BEEN DECIDED AGAINST THE ASS ESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE CONCUR WITH THE STAND OF LD. DR THAT THE ASSESSEE FAILED TO AVAIL THE SEVERAL OPPORTUNITIES BEING PROVIDED TO HER BY LD. CIT(A) AND THE ASSESSEE DID NOT MAKE ANY EFF ORTS TO PURSUE THE SAME. HOWEVER, AT THE SAME TIME, IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFE CTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HI S CASE. THEREFORE, WE SEE NO HARM IN PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST HER CLAIM BEFORE LD. CIT(A). THEREFORE, THE MATTER IS RESTORED BACK TO FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION WITH DIRECTION TO ASSESSEE TO ITA NO 6306/MUM/2016 SHAMIM BANO RATHI ASSESSMENT YEAR 2006-07 4 SUBSTANTIATE HER CLAIM FORTHWITH FAILING WHICH LD. CIT(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. 7. RESULTANTLY, THE APPEALS FILED BY THE ASSESSEE S TANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18. 08.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI