LATE SHRI JUGALKISHORE AGARWAL, MUMBAI V. ITO 2(1)(2), MUMBAI

ITA 6880/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9030 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 10-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K MEHTA
• Assessee Lawyers: VIPUL JOSHIALPANA REDIJ
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J BENCH BEFORE SHRI I.P.BANSAL(JUDICIAL MEMBER) AND SHRI D.KARUNAKAR RAO (ACCOUNTANT MEMBER) ITA NOS.6878 & 6880/MUM/2011 ASSESSMENT YEARS: 2005-06 & 2006-07 LATE SHRI JUGAL KISHORE AGARWAL, 182, DELUXE HOUSE, MODY STREET, FORT, MUMBAI-02 PA NO.AAKPA 9269 P ITO 2(1)(2), MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI VIPUL JOSHI/ALPANA REDIJ RESPONDENT BY: SHRI N.K.MEHTA DATE OF HEARING: 10.9.2012 DATE OF PRONOUNCEMENT: 14 .9.2012 ORDER PER I.P.BANSAL, JM: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. THE Y ARE DIRECTED AGAINST TWO SEPARATE EXPARTE ORDERS DATED 16.8.2011 PASSED BY LD CIT(A) FOR ASSE SSMENT YEARS 2005-06 AND 2006-07, RESPECTIVELY. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THE PRESEN T APPEALS AGAINST EXPARTE ORDERS PASSED BY LD CIT(A) IS THAT APPEALS HAVE BEE N DECIDED BY LD CIT(A) AGAINST PRINCIPLE OF NATURAL JUSTICE WITHOUT AFFORDING PROP ER, EFFECTIVE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. AGAINST THIS GROUND, IT IS THE REQUEST OF THE AS SESSEE THAT APPEALS BE RESTORED BACK TO LD CIT(A) FOR FRESH ADJUDICATION. WITHOUT PREJUDICE TO ABOVE, ASSESSEE HAS ALSO ASSAILED THE ASSESSMENTS ON THE GROUND OF INVALID I NITIATION OF REASSESSMENT PROCEEDINGS AND ALSO THE ADDITIONS MADE WHICH HAVE BEEN SUSTAIN ED BY LD CIT(A). ON THE ISSUE WHETHER THERE IS LACK OF PROPER, EFFECTIVE AND SUFF ICIENT OPPORTUNITY OF HEARING, AS ASSESSEE HAS BEEN CONTENDING, BOTH THE PARTIES WERE HEARD AND IT WILL BE RELEVANT TO REPRODUCE GROUND TAKEN BEFORE US WITH REGARD TO THI S ISSUE AS UNDER: ITA NOS.6878 & 6880/MUM/2011 ASSESSMENT YEARS: 2005-06 & 2006-07 2 THE LD CIT(A) ERRED IN PASSING THE ORDER EXPARTE W ITHOUT AFFORDING PROPER, EFFECTIVE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 4. WE HAVE HEARD BOTH PARTIES ON THIS ISSUE AND WE FOUND THAT THERE IS LACK OF EFFECTIVE OPPORTUNITY OF HEARING PROVIDED TO THE AS SESSEE BY LD CIT(A). WHILE PROCEEDING TO DECIDE THE APPEALS FILED BY ASSESSEE EXPARTE, THE OBSERVATION OF LD CIT(A) IN BOTH THE ORDERS ARE AS UNDER: THE PRESENT APPEAL IS AGAINST THE ORDER U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, DATED 9.12.2010. THE APPEAL OF THE ASSESSEE W AS FIXED FOR HEARING FOR 9.8.2011 BY ISSUE OF PROPER NOTICE WHICH WAS SENT B Y SPEED POST, SR. NO.174 DT.4.7.2011, AT THE ADDRESS GIVEN BY THE ASSESSEE I N FORM NO.35 BUT NONE ATTENDED. THEREFORE, THE APPEAL OF THE ASSESSEE IS DECIDED ON THE BASIS OF THE MATERIAL AVAILABLE ON THE RECORD. THE GROUNDS OF A PPEAL OF THE ASSESSEE ARE DISCUSSED AND DECIDED AS UNDER: 5. THE AFOREMENTIONED OBSERVATION OF LD CIT(A) DOES NOT CONVEY THAT NOTICE ISSUED BY HIM WAS ASO PROPERLY SERVED UPON THE ASSESSEE. MOREOVER, ONLY ON THE FIRST NOTICE WITHOUT ASCERTAINING THE FACT OF SERVICE, APPEALS O F THE ASSESSEE HAVE BEEN DECIDED. THEREFORE, WE FEEL THAT THERE IS LACK OF OPPORTUNIT Y. ACCEPTING THE REQUEST OF THE ASSESSEE, WE RESTORE BOTH THE APPEALS TO THE FILE O F LD CIT(A). TO ENSURE COMPLIANCE BY THE ASSESSEE BEFORE LD CIT(A), WE DIRECT THE ASSESS EE TO APPEAR BEFORE LD CIT(A) ON 5.11.2012. THE DATE WAS DULY NOTED BY LD A.R. AND ON THE SAID DATE, LD CIT(A) WILL HEAR THE APPEALS BY PROVIDING THE ASSESSEE REASONABLE OP PORTUNITY OF HEARING. THE ASSESSEE WILL BE AT LIBERTY TO PALCE ANY MATERIAL ON RECORD TO SUPPORT HIS CASE AS PER PROVISIONS OF LAW. WITH THESE DIRECTIONS, WE RESTORE THESE APPEA LS TO THE FILE OF LD CIT(A). SINCE THE ENTIRE MATTER IS RESTORED BACK TO LD CIT(A), WE DO NOT EXPRESS ANY OPINION ON THE MERITS OF OTHER ISSUES TAKEN BY THE ASSESSEE IN THE PRESEN T APPEALS, WHICH WILL BE RE- ADJUDICATED BY LD CIT(A) IN THE MANNER AFORESAID. 6. IN THE RESULT, BOTH APPEALS FILED BY ASSESSEE AR E ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 14 TH SEPTEMBER, 2012 SD/- (D.KARUNAKAR RAO) ACCOUNTANT MEMBER SD/- (I.P.BANSAL) JUDICIAL MEMBER MUMBAI, DATED 14 TH SEPTEMBER, 2012 PARIDA ITA NOS.6878 & 6880/MUM/2011 ASSESSMENT YEARS: 2005-06 & 2006-07 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),4, MUMBAI 4. COMMISSIONER OF INCOME TAX, 2 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH J MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI