Sri. DILIP A BOBDE (PATIL), THANE V. ITO Wd. - 16(1)(4), MUMBAI

ITA 6369/MUM/2006

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59698 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 30-11-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PARTHASARTHY NAIK
• Assessee Lawyers: HITESH P SHAH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE SHRI D.K.AGARWAL (JM) AND SHRI T.R.SOOD(AM) ITA NO.6369/MUM/2006 (ASSESSMENT YEAR: 2003-04) SHRI DILIP A BOBDE (PATIL), (PROP. M/S SAI POINT), GR.FLOOR, PRESTIGE PRECINCT, OPP.T.M.C.OFFICE, NITIN CASTING CO.COMPOUND, ALMEDA MARG, PANCHPAKHADI, THANE-400601 PAN:AEGPB6689A INCOME TAX OFFICER WARD 16(1)(4), MATRU MANDIR BUILDING, TARDEO, MUMBAI-400007. APPELLANT V/S RESPONDENT DATE OF HEARING : 24.1.2012 DATE OF PRONOUNCEMENT : 24.1.2012 APPELLANT BY : SHRI HITESH P.SHAH RESPONDENT BY : SHRI PARTHASARTHY NAI K O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.8.2006 PASSED BY THE L D. CIT(A) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS A S DEALERSHIP OF TWO WHEELER VEHICLES OF HONDA, FILED ITA NO.6369/MUM/2006 (ASSESSMENT YEAR: 2003-04) 2 RETURN DECLARING TOTAL INCOME OF RS.3,39,260/-. I N THE ABSENCE OF ANY COMPLIANCE OF THE STATUTORY NOTICES ISSUED BY THE AO, THE AO COMPLETED EX- PARTE ASSESSMENT U/S 144 OF THE INCOME TAX ACT, 196 1 (IN SHORT THE ACT) AT AN INCOME OF RS.37,21,500/- V IDE ORDER DATED 30.12.2005. 3. BEFORE THE LD. CIT(A) AGAIN THERE WAS NO COMPLIANCE, THEREFORE, THE LD. CIT(A) PASSED EX-PAR TE ORDER AND DISMISSED THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. GROUND NOS.1 AND 2 ARE AGAINST THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 6. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS APPOINTED SHRI VIRAL R.SHAH, CHARTERED ACCOUNTANT (CA) TO REPRESENT HIS CASE BEFORE THE AO AND THE LD. CIT(A ). HOWEVER, THE SAID CHARTERED ACCOUNTANT UNDER UNAVOIDABLE CIRCUMSTANCES COULD NOT PERSONALLY ATTENDED BEFORE THE AO AND HENCE THE AO PASSED ITA NO.6369/MUM/2006 (ASSESSMENT YEAR: 2003-04) 3 EX-PARTE ORDER. HE FURTHER SUBMITS THAT BEFORE THE LD. CIT(A), THE SAID CA FILED WRITTEN SUBMISSIONS BUT THE LD. CIT(A) WITHOUT INTIMATING HIM THE REQUIREMENT O F FORMALITY UNDER RULE 46A IN PLACE OF ORAL PRAYER DISMISSED THE ASSESSEES APPEAL. IN SUPPORT, HE ALS O PLACED ON RECORD AN AFFIDAVIT DATED 18.1.2012 OF S HRI VIRAL R.SHAH, CA APPEARING AT PAGE 1 OF THE ASSESSE ES PAPER BOOK. HE, THEREFORE, SUBMITS THAT IN VIEW OF THE ABOVE THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) B E CANCELLED AND THE APPEAL FILED BY THE ASSESSEE BE RESTORED TO THE FILE OF THE CIT(A) TO DECIDE THE SA ME AFRESH WHICH WAS NOT OBJECTED TO BY THE LD. DR. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND THAT THERE IS NO DISPUTE THAT THER E IS NO PROPER COMPLIANCE BY THE ASSESSEE OF THE STATUTO RY NOTICES ISSUED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HENCE, THE AO PASSED EX-PARTE ORDER U/S 144 OF THE ACT. WE FURTHER FIND THAT BEFORE THE LD. CIT(A) AGAIN THE ASSESSEE MADE NO PROPER COMPLIANCE, THEREFORE, THE LD. CIT(A) PAS SED THE EX-PARTE ORDER. CONSIDERING THE AFFIDAVIT OF T HE ITA NO.6369/MUM/2006 (ASSESSMENT YEAR: 2003-04) 4 ASSESSEES CA, SHRI VIRAL R.SHAH, ADMITTING THE FA CT THAT DUE TO UNAVOIDABLE CIRCUMSTANCES HE COULD NO T REPRESENT THE ASSESSEES CASE BEFORE THE REVENUE AUTHORITIES, WE ARE OF THE VIEW THAT IN THE INTERE STS OF JUSTICE, THE ASSESSEE MAY BE ALLOWED ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LD. CI T(A) AND ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY T HE LD. CIT(A) TO HIS FILE TO DECIDE ALL THE GROUNDS TA KEN BY THE ASSESSEE AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES 8. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH JAN.,201 2. SD S D (T.R.SOOD) (D.K.AGARW AL) ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI,24TH JANUARY, 2012 SRL: ITA NO.6369/MUM/2006 (ASSESSMENT YEAR: 2003-04) 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI