ALOK BHARARA, MUMBAI V. ITO 22(2)(1), MUMBAI

ITA 6630/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1498 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 31-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6630/MUM/2014 ASSESSMENT YEAR: 2007-08 SHRI ALOK BHARARA, VS. ITO 22(2)(1) PROP M/S. SURYA OIL CARRIERS MUMBAI BHANU VILLA BEHIND NAVBHARAT APTS SANTOSH NAGAR, CHEMBUR, MUMBAI - 400074 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY: SHRI RAJESH KUMAR YADAV, DR DATE OF HEARING : 21/1 2/2016 DATE OF PRONOUNCEMENT: 21/12/2016 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2007-08. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS)-33, MUMBAI AND ARISES OUT OF ORDER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUND OF APPEAL FILED BY THE ASSESSEE READ S AS UNDER:- THE LD. COMMISSIONER OF INCOME TAX (APPEALS) XXX III, MUMBAI CIT(A) ERRED IN NOT GRANTING FINAL OPPORTUNITY OF BEING HEARD. THE L D. COMMISSIONER OF INCOME TAX (APPEALS) XXXIII, MUMBAI CIT(A) ERRED IN ISSUING S TANDARD NOTICES AND PASSING THE ORDER EX-PARTE WITHOUT GIVING THE APPELLANT A CH ANCE TO FILE A WRITTEN SUBMISSION. FURTHER THE LD. COMMISSIONER OF INCOME T AX (APPEALS) XXXIII, MUMBAI CIT(A) ERRED IN ACCEPTING THE LEARNED ASSESSIN G OFFICERS STAND WHEN ITA NO. 6630/MUM/2014 2 PRIMA FACIE, IT WAS FAIRY EVIDENT, THAT THE PENALTY LEVIED BY THE LEARNED ASSESSING OFFICER WAS MECHANICAL WITHOUT CONSIDERING THE MENS REA OF THE APPELLANT. 3. WE HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE LEARNED CIT(A) ISSUED A NOTICE ON 18.02.2014 FI XING THE CASE FOR HEARING ON 27.02.2014. IN RESPONSE TO IT, THE ASSES SEE REQUESTED FOR AN ADJOURNMENT. ACCORDINGLY, THE LEARNED CIT(A) ADJ OURNED THE CASE FOR HEARING TO 20.03.2014. THE LEARNED CIT(A) HAS M ENTIONED THAT NOBODY APPEARED ON THE ABOVE DATE. AFTER THAT, HE P ASSED THE APPELLATE ORDER ON 30.09.2014 CONFIRMING THE PENALT Y OF RS. 6,33,270/- IMPOSED BY THE A.O. UNDER SECTION 271(1) (C) OF THE ACT. 4. WE FIND THAT NO REASONABLE OPPORTUNITY HAS BEEN GIVEN BY THE LEARNED CIT(A) TO THE ASSESSEE TO REPRESENT HIS CAS E. THE OPPORTUNITY GIVEN BY THE LEARNED CIT(A) HAS BEEN NARRATED BY US AT PARA 3 HERE- IN-ABOVE. AS IT IS A CASE OF PENALTY IMPOSED BY THE AO UNDER SECTION 271(1)(C) AND THE ASSESSEE DESERVES REASONABLE OPPO RTUNITY OF BEING HEARD, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE IT TO HIS FILE TO PASS AN ORDER AS PER THE PROVISIONS OF THE ACT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21/12/2016 SD/- SD/- (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI; DATED: 21/12/2016 BISWAJIT, SR. P.S. ITA NO. 6630/MUM/2014 3 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