SHANTEE DEVELOPERS, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-4, THANE

ITA 6845/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8134 (ITAT-MUMBAI)
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: R R SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay; Non compliance; Condonation of delay
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM I .T.A. NO. 6845 /MUM/201 7 ( / ASSESSMENT YEA R : 2 0 14 - 15 ) SHANTEE DEVELOPERS, SH OP NO.5,6,7, SUNSHINE GARDEN, ACHOLE ROAD, NALASOPARA (E), THANE - 401209 VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE - 4, AASHAR PARK, WAGALE INDUSTRIAL ESTATE, THANE. / APPELLANT .. / RESPONDENT STAY APPLICATION NO.531/MUM/2 017 ARISING OUT OF ITA NO.6845 / MUM/2017 (AY - 2014 - 15) SHANTEE DEVELOPERS, SHOP NO.5,6,7, SUNSHINE GARDEN, ACHOLE ROAD, NALASOPARA (E), THANE - 401209 VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE - 4, AASHAR PARK, WAGALE INDUSTRIAL ESTATE, THANE. / APPELLANT .. / RESPONDENT ./ PAN : ABPFS6378F I .T.A. NO. 6847/MUM/2017 ( / ASSESSMENT YEA R : 2014 - 15 ) SHANTEE CONSTRUCTIONS, SHOP NO.5,6,7, SUNSHINE GARDEN, ACHOLE ROAD, NALASOPARA (E), THANE - 401209 VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE - 4, AASHAR PARK, WAGALE INDUSTRIAL ESTATE, THANE. / APPELLANT .. / RESPONDENT STAY APPLICATION NO.532/MUM/2017 ARISING OUT OF ITA NO.6847/MUM/2017 (AY - 2014 - 15) SHANTEE DEVELOPERS, SHOP NO.5,6,7, SUNSHINE GARDEN, ACHOLE ROAD, NALASOPARA VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE - 4, AASHAR PARK, WAGALE INDUSTRIAL ESTATE, ITA NO.6845 AND 6847 / MUM/201 7 SA NO.531 AND 532/M/17 2 (E), THANE - 401209 THANE. / APPELLANT .. / RESPONDENT ./ PAN :AB VFS9216 N / ASSESSEE BY : SHRI R R SHAH /RE VENUE BY : SHRI RAM TIWARI / DATE OF HEARING : 1 5 .12.2017 / DATE OF PRONOUNCEMENT : 1 5 .12 . 2017 / O R D E R PER RAJESH KUMAR, ACCOUNTANT M EMBER : THESE ARE THE STAY APPLICATIONS ARISING OUT OF ORDER PASSED BY THE LD.CIT(A) - 3, THANE, EVEN DATED 12.10.2017 FOR THE ASSESSMENT YEAR 2014 - 15 WHICH IN TURN ARISING OUT OF THE ASSESSMENT ORDER S PASSED BY THE AO UNDER SECTION 144 OF THE INCOME TA X ACT, 1961 . 2. AT THE OUTSET, THE LD.COUNSEL DREW OUR ATTENTION TO THE FACT THAT THE ASSESSEE S WERE NOT GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE BOTH THE LOWER AUTHORITIES . THE LD. CIT(A) DISMISSED THE APPEALS ON THE GROUND THAT THERE IS A DEL AY I N FILING THE APPEAL S BY 18 DAYS WHICH ARE GROSS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. AR ALSO SUBMITTED THAT THE LD.CIT(A) ALSO DID NOT ADMIT AND DECID E THE APPEAL S ON MERIT S . ACCORDINGLY, THE LD.AR CONTEN D ED THAT BOTH THE APPEALS BE R ESTORED TO THE FILE OF THE LD.CIT(A) SO THAT THE SAME COULD BE DECIDED ON MERIT S OF THE EACH CASE. 3 . ON THE OTHER HAND, THE LD.DR SUBMITTED THAT DESPITE AFFORDING REPEATED OPPORTUNITIES TO THE ASSESSEE OF BEING HEARD, THE ASSESSEE DID NOT APPEAR ITA NO.6845 AND 6847 / MUM/201 7 SA NO.531 AND 532/M/17 3 BEFORE T HE AUTHORITIES BELOW THROUGHOUT THE PROCEEDINGS. THE ASSESSEE WAS NON - CO - OPERATIVE AND THE ASSESSMENT AS WELL AS APPEAL S WERE DECIDED UNDER SECTION 144 OF THE ACT. FINALLY, THE LD.DR PRAYED BEFORE THE BENCH THAT THE STAY APPLICATIONS AS WELL AS THE APPE ALS OF THE ASSESSEE S SHOULD BE DISMISSED DUE TO NON - COOPERATION AND NON COMPLIANT ATTITUDE OF THE ASSESSEE. 4 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS PLACED BEFORE US. W E FIND THAT THE ORDER S WERE PASSED BY THE AO U/S 144 OF THE ACT . BEFORE THE LD.CIT(A), THE ASSESSEE COULD NOT AVAIL VARIOUS OPPORTUNITIES GIVEN RESULTING INTO PASSING OF THE EX - PARTE ORDER. WE FIND THAT THE LD.CIT(A) DISMISSED THE APPEAL S OF THE ASSESSEE ON THE GROUND OF DELAY IN FILING OF APPEAL S BY 18 DAYS. IN THE PRESENT CIRCUMSTANCES, WE ARE OF THE VIEW THAT ACCORDING TO PRINCIPLE OF NATURAL JUSTICE, THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PRESENT THEIR CASE BEFORE THE LD. CIT(A) WHICH WOULD MEET ENDS OF JUSTICE AND FAIR PLAY. ACCORDINGLY , W E RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO CONSIDER THE APPLICATION FOR CONDONATION OF DELAY AS MAY BE FILED BY THE ASSESSEE FOR LATE FILING OF THE APPEALS AND IF THE DELAY IS CONDONED, DECIDE THE APPEALS ON MERIT AFTER A FFORDING FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE ARE ALSO DIRECTED TO CO - OPERATE WITH THE LD. CIT(A) FOR SPEEDY DISPOSAL OF APPEALS. 5. SINCE WE HAVE RESTORED THE APPEALS TO THE FILE OF LD.CIT(A) ON THE ISSUE OF CONDONATION OF DELAY AND DECIDING THE APPEALS ON MERIT, THE STAY APPLICATIONS BECOME INFRUCTUOUS AND HENCE DISMISSED AS INFRUCTUOUS. ITA NO.6845 AND 6847 / MUM/201 7 SA NO.531 AND 532/M/17 4 6 . IN THE RESULT, THE APPEALS OF THE ASSESS EES ARE ALLOWED FOR STATISTICAL PURPOSES AND STAY APPLICATIONS STAND DISMISSED. O RDER WAS PRONOUNCED IN THE OPEN COURT ON 1 5 TH DEC, 2017 . S D SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 1 5 . 12 .2017 SRL,SR.PS / COP Y OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI