NIZAMMUDIN F. SHAIKH, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, MUMBAI

ITA 6331/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8343 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B B RAJENDRA PRASAD
• Assessee Lawyers: K N SHAH
• Keywords: Opportunity of being heard
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 6331 /MUM/201 7 (A.Y: 2010 - 11) SHRI NIZAMMUDIN F. SHAIKH PRECISION FABRICATORS W/21, MIDC, KULGAON, BADLAPUR DIST, THANE PAN: ABBPS 3977 Q V. DCIT CIRCLE - 2, 2 ND FLOOR, MOHAN PLAZA, WAYLE NAGAR, KHANDAKPADA, KALYAN (W) 421 301 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.N. SHAH DEPARTMENT BY : SHRI B.B. RAJENDRA PRASAD DATE OF HEARING : 26 .03.2019 DATE OF PRONOUNCEMENT : 05 .04 .2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 3, THANE , [HEREINAFTER IN SHORT LD.CIT(A)] DATED 03.07.2017 FOR THE ASSESSMENT YEAR 2010 - 11. ASSESSEE CHALLENGED THE ORDER OF THE LD.CIT(A) IN PASSING THE ORDER EXPARTE AS WELL AS IN SUSTAINING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 2 ITA NO.6331/MUM/2017 (A.Y: 2010 - 11) SHRI NIZAMMUDIN F. SHAIKH 2. AT THE OUTSET LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) PASSED ORDER EXPARTE, WITHOUT PROVIDING ONE MORE OPPORTUNITY TO SUBMIT HIS CASE. HE PRAYED THAT THE APPEAL S MAY BE RESTORED TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE. 3. LD. DR OBJECTING TO THE SUBMISSIONS OF THE LD. COUNSEL AND REFERRING TO THE ORDER OF THE LD.CIT(A) SUBMITTED THAT, LD.CIT(A) HAD GIVEN SUFFICIENT OPPORTUNITY BUT THE ASSESSEE COULD NOT APPEAR BEFORE THE LD.CIT(A) AND T HEREFORE THE LD.CIT(A) PASSED THE ORDER. 4. ON HEARING BOTH THE SIDES AND ON PERUSAL OF THE ORDER OF THE LD.CIT(A) , WE FIND THAT ONE MORE OPPORTUNITY SHOULD HAVE BEE N GIVEN TO THE ASSESSEE TO PROSECUTE THE APPEAL. WE HAVE ALSO OBSERVE D THAT THE ASSESSEE SHOULD HAVE COOPERATED IN THE PROCEEDINGS BEFORE THE LD.CIT(A) WITHOUT REMAINING ABSENT AND ATTENDED THE PROCEEDINGS WITHOUT SEEKING UNNECESSARY ADJOURNMENTS . THUS, THE ASSESSEE IS NOW DIRECTED TO COOPERATE WITH THE PROCEEDINGS BEFORE THE LD.CIT(A) WITHOUT FAIL . WITH THESE OBSERVATIONS TH IS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR D ENOVO ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 3 ITA NO.6331/MUM/2017 (A.Y: 2010 - 11) SHRI NIZAMMUDIN F. SHAIKH 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 05 TH APRIL , 2019 SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 05 / 0 4 / 2019 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM