DARODI UTKARSH SAHAKARI PATPEDHI LIMITED, MUMBAI V. INCOME TAX OFFICER 27(1)(4), MUMBAI

ITA 6669/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6174 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 80P

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI G. MANJUNATH , ACCOUNTANT MEMBER ITA NO. 6669 / MUM . /201 8 ( ASSESSMENT YEAR : 20 14 15 ) DARODI UTKARSH SAHAKARI PATPEDHI PLOT NO.5, U 2, SHIVAJI NAGAR GOVANDI, MUMBAI 400 043 PAN AAAAD6764F . APPELLANT V/S INCOME TAX OFFICER WARD 27(1)(4), MUMBAI . RESPONDENT ASSESSEE BY : SHRI KUMAR KALE REVENUE BY : SHRI KAMAL MANGAL DATE OF HEARING 14 .01.2020 DATE OF ORDER 05.02.2020 O R D E R PER SAKTIJIT DEY. J.M. T HE CAPTIONED APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 21 ST AUGUST 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 24, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2014 15. 2. BRIEF FACTS ARE, THE ASSESSEE , A CREDIT CO OPERATIVE SOCIETY , CARRIES ON BUSINESS OF BANKING. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 17 TH SEPTEMBER 2 DARODI UTKARSH SAHAKARI PATPEDHI 2014, DECLARING NIL INCOME AFTER CLAIMING DEDUCTION UNDER SECTION 80P OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ). A SSESSEE IN CASE OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 9 TH DECEMBER 2016, DETERMINING THE INCOME AT ` 4,18,650. THE VARIATION BETWEEN THE INCOME RETURNED AND INCOME DETERMINED WAS DUE TO DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80P OF THE ACT. AGAINST THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. THE APPEAL FILED BY THE ASSESSE E WAS DISMISSED IN LIMINE BY LEARNED COMMISSIONER (APPEALS) DUE TO NON APPEARANCE OF THE ASSESSEE ON THE SCHEDULED DATE OF HEARING. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , NO OPPORTUNITY WAS GRANTED TO THE ASSESSEE FOR REPRESENTING ITS CASE BEFORE LEARNED COMMISSIONER (APP EALS). HE SUBMITTED , ON T HE FIRST DATE OF HEARING ITSELF THE A PPEAL WAS DISPOSED OFF EX PARTE, THAT TOO , IN LIMINE WITHOUT DECIDING THE ISSUE S ON MERIT. THUS, HE SUBMITTED , THE ORDER OF LEARNED COMMISSIONER (APPEALS) SHOULD BE SET ASIDE AND ISSUES MAY BE R ESTORED BACK TO HIM FOR FRESH ADJUDICATION. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION FOR RESTORING THE ISSUE S TO THE FILE OF LEARNED COMMISSIONER (APPEALS). 3 DARODI UTKARSH SAHAKARI PATPEDHI 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUT EDLY, THE APPEAL FILED BY THE ASSESSEE BEFORE LEARNED COMMISSIONER (APPEALS) WAS DIS POSED OFF EX PARTE. FURTHER, LEARNED COMMISSIONER (APPEALS) HAS DISMISSED THE APPEAL IN LIMINE WITHOUT DECIDING THE ISSUE S ON MERIT S . ON A PERU SAL OF THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS), IT IS NOT CLEAR AS TO HOW MANY OPPORTUNITIES WERE GIVEN TO THE ASSES SEE TO REPRESENT ITS CASE, AS, L EARNED COMMISSIONER (APPEALS) HAS ONLY REFERRED TO THE NOTICE DATED 11 TH JUNE 2018, FIXING THE DATE OF HEARING ON 21 ST AUGUS T 2018, WHICH IS STATED TO HAVE BEEN SERVED ON THE ASSESSEE ON LINE. HOWEVER, THE ASSESSEE HAS DISPUTED THE AFORES AID FACT. BE THAT AS IT MAY, LEARNED COMMISSIONER (APPEALS) WHILE DISPOSING OFF THE APPEAL HAS NOT DECIDED THE ISSUE S ON MERIT S. PROVISION CON TAINED UNDER SECTION 251(1)(A) OF THE ACT CLEARLY LAYS DOWN THAT WHILE DISPOSING OFF THE APPEAL AGAINST THE ASSESSMENT ORDER, THE FIRST APPELLATE AUTHORITY HAS THE POWER TO CONFIRM, REDUCE, ENHANCE, OR ANNUL THE ASSESSMENT. IN OTHER WORDS, HE HAS TO DECIDE THE APPEAL ON MERIT S, WHICH HAS NOT HAPPENED IN THE PRESENT CASE. THEREFORE , FOR THE AFORESAID REASON ALONE, THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) CANNOT BE SUSTAINED. FURTHER, ON THE BASIS OF MATERIAL ON RECORD, WE ARE OF THE VIEW THAT REA SONABLE OPPORTUNITY HAS NOT BEEN GRANTED TO THE ASSESSEE TO REPRESENT ITS CASE. IN VIEW OF THE ABOVE, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER PASSED BY LEARNED COMMISSIONER (APPEALS) 4 DARODI UTKARSH SAHAKARI PATPEDHI AND RESTORE THE MATTER BACK TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERITS. NEEDLESS TO MENTION, THE ASSESSEE MUST BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 05.02.2020 SD/ - G. MANJUNATH ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 05.02.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI