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

ITA 6307/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9632 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• 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
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Opportunity of being heard
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO . 6307 /M/ 20 1 6 ASSESSMENT YEAR : 2006 - 07 ) SHAMIM BANO RATHI 807, TULSIANI CHAMBERS, 212, NARIMAN POINT MUMBAI PIN: 400021 VS. ASST CIT C - 10BKC, BANDRA(E) PIN: 400051 ./ ./ PAN/GIR NO. : AAAPR 9202 P ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 17 .0 8 .2017 DATE OF PRONOUNCEMENT : 22 . 09 .2017 O R D E R PER AMARJIT SINGH, JM: THE PRESENT APPEA L HA S BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26.03 .201 4 PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS) - 37 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2006 - 07 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE ORDERS PASSED BY THE LEARNED LOWER AUTHORITIES ARE BAD IN LAW AND BAD IN FACTS. 2. THE LEARNED CIT (A) HAS GROSSLY ERRED IN PASSING AN EX - PARTE APPELLATE ORDER, INASMUCH AS, THE APPELLANT WAS PREVENTED BY A REASONABLE AND SUFFICIENT CAUSE FOR NON ATTENDANCE FOR WARN OF COMMUNICATION OF DATA OF BEARING. ASSESSEE BY: SHRI G.P. MEHTA (AR) DEPARTMENT BY: SHRI SAURABH DESHPANDE (DR) ITA. NO.6307/M/2016 A.Y.2006 - 07 2 3. THE PENALTY ORDER PASSED U/S 271(1)(B) OF THE IT. ACT 961, BY THE LEARNED ASSESSING OFFICER IMPOSING PE NALTY AT HIS 10,0001 AND UPHELD BY THE LEA RNED CIT(A), IS AB - INITIO VOID, INASMUCH AS, NO SPECIFIC SHOWCAUSE NOTICE ALLEGING THE NATURE OF INFRINGEMENT WAS COMMUNICATED PRIOR TO LEVY OF IMPUGNED PENALTY 4. THE LEARNED LOWER AUTHORITES HAVE GROSSLY ERRED IN LEVYING / UPHOLDING OF LEVY OF PENALTY, WITHOUT APPRECIATING THE FACT THAT THE APPELLANT WAS PREVENTED BY A REASONABLE AND SUFFICIENT CAUSE FOR NON - ATTENDANCE. 5. HAVING REGARD TO THE FACTS OF THE CASE, PROVISIONS OF LAW AND JUDICIAL PROPOSITIONS, THE PE NALTY IN TRADER IS WHOLLY UNWARRANTED. 06 THE APPELLANT MAY PLEASE BE PERMITTED TO RAISE ANY ADDITIONAL OR ALTERNATIVE GROUND ON OR BEFORE THE HEARING OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME DECLARING TOTAL INCOME TO THE TUNE OF RS.65,39,880/ - ON 01.10.2006 RELEVANT TO THE ASSESSMENT YEAR 2006 - 2007 . THE CASE WAS REOPENED U/S 147 OF THE I.T. ACT , 1961 FOR THE A.Y. 2006 - 07. NOTICE U/S 148 OF THE I.T. ACT, 1961 WAS ISSUED ON 28.03.2013 AND SERVE D UPON THE ASSESSEE ON 29.03.2013 . FURTHER, A NOTICE U/S 142(1) OF THE I.T. ACT, 1961 WAS ISSUED ON 26.08.2013 WHICH WAS ALSO SERVED UPON THE ASSESSEE. THEREAFTER, THE SHOW CAUSE NOTICE WAS ALSO ISSUED WHIC H WAS SERVED UPON THE 01.03.2014 BUT NOBODY ATTEND ED THE PROCEEDING , THEREAFTER, THE PENALTY TO THE TUNE OF RS. 10,000/ - WAS LEVIED IN VIEW OF THE PROVISION U/S 271(1)(B) OF THE ACT. THE APPEAL WAS FILED BEFORE THE CIT(A) WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE THEREFORE, THE PRESENT APPEAL HAS BEEN FILED BEFORE US. ITA. NO.6307/M/2016 A.Y.2006 - 07 3 4 . WE HAVE HEARD THE AR GUMENT AND ADVANCED BY THE LD. R EPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. IN FACT, THE ASSESSEE DID NOT ARGUED THAT THE CASE ON MERIT BUT RAISED THE CONTENTION THAT IN FACT THE PENALTY ORDER DATED 21.02.2 014 WAS PASSED IN HER ABSENCE THEREFORE AN OPPORT UNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE IN ACCORDANCE WITH LAW. IT IS ALSO ARGUED THAT THE THERE IS NO DEFAULT OF APPEARANCE OF THE ASSESSEE BU T THE AO HAS PASSED THE ORDER IN HASTE , T HEREFORE, AN OPPO RTUNITY OF BEING HEARD IS REQUIRED TO BE GIVEN TO THE ASSESSEE IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTIONS. ON APPRAISAL OF THE ORDER DATED 21.02.2014 PASSED BY THE AO AND ON APPRAISAL OF THE ABOVE ORDER DATED 26.02.2014 PASSED BY THE CIT(A) IN QUESTION , W E NOTICE D THAT BOTH THE ORDERS HAVE BEEN PASSED IN ABSENCE OF THE ASSESSEE. SINCE NO OPPORTUNITY OF BEING HEARD WAS AVAILED BY THE ASSESSEE , THEREFORE, WE ARE OF THE VIEW THAT THE ORDER IN QUESTION IS NOT JUSTIFIABLE, THEREFORE, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) IN QUESTION AND RESTORED TH E ISSUE BEFORE THE CIT(A) TO PASS THE ORDER AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE AS SESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. 5 . IN RESULT, APPEAL FILED BY THE ASSESSEE IS HERE BY ORDERED TO BE ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON 22. 09 . 2017 . ITA. NO.6307/M/2016 A.Y.2006 - 07 4 SD/ - SD/ - ( G.S. PANNU ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 22 . 09 . 2017 V.P. SINGH / 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