NEELKANTH DEVELOPRES, MUMBAI V. ITO 25(3)(5), MUMBAI

ITA 6904/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0226 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 25-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: PRAKASH JOTWANI LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 144

Judgement Text

ITA NO 6904/MUM/2016 NEELKANTH DEVELOPERS ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 6904/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) NEELKANTH DEVELOPERS SHEELA NIWAS RAMABAI CHEMBURKAR MARG VILE PARLE(E) MUMBAI 400 057 / VS. INCOME TAX OFFICER- 25(3)(5) ROOM NO.609, PRATYAKSHKAR BHAVAN, BKC, BANDRA(E) MUMBAI -400 055 ! ./ ./PAN/GIR NO. AAHFN-0648-J ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : PRAKASH JOTWANI, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 16/08/2017 / DATE OF PRONOUNCEMENT : 18/08/2017 ITA NO 6904/MUM/2016 NEELKANTH DEVELOPERS ASSESSMENT YEAR 2012-13 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-37 [CIT(A)], MUMBAI DATED 14/09/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSEE, IN ITS GROUNDS OF APPEAL, HAS CONTESTED THE IMPUGNED ORDER ON LEGAL GROUNDS AS WELL AS ON M ERITS SINCE THE IMPUGNED ORDER IS AN EX-PARTE ORDER. 2. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT FIRM ENGAGED IN CONSTRUCTION ACTIVITY WAS ASSESSED ON BEST JUDGMENT BASIS U/S 144 FOR IMPUGNED AY ON 09/03/2015 WHERE THE INCOME OF THE A SSESSEE WAS ASSESSED AT RS.1,03,97,900/- AS AGAINST NIL RETURN FILED BY THE ASSESSEE. STATUTORY NOTICES U/S 143(2) & 142(1) WER E ISSUED FROM TIME TO TIME CALLING FOR THE REQUISITE INFORMATION BUT N O DETAILS WAS FURNISHED BY THE ASSESSEE, WHICH LED THE LD. AO TO COMPLETE T HE ASSESSMENT ON BEST JUDGMENT BASIS U/S 144 OF THE INCOME TAX ACT,1961. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 14/09/2 016 WHERE THE ASSESSEE AGAIN FAILED TO MAKE ANY SUBMISSION TO SUB STANTIATE HIS CLAIM WHICH RESULTED INTO CONFIRMATION OF STAND OF LD. AO IN AN EX-PARTE ORDER. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND CONTEST THE STAND OF LD. CIT(A) ON TECHNICAL GROUNDS AS WELL AS ON MERITS. 4. THE LD. REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT ITA NO 6904/MUM/2016 NEELKANTH DEVELOPERS ASSESSMENT YEAR 2012-13 3 HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NA TURAL JUSTICE. THE LD. AR CONTENDED THAT THE ASSESSEE STOOD FAIR CHANCE OF CO NTESTING THE ADDITION AND THEREFORE, IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE ISSUES BEFORE LD. FIRST APPELLATE AUTHORITY MAY BE PROVIDED TO THE ASSESSEE. 5. PER CONTRA , THE LD. DR OPPOSED THE SAME BY DRAWING OUR ATTENT ION TO THE FACT THAT THE ASSESSEE WAS PROVIDED WITH SUF FICIENT OPPORTUNITIES OF BEING HEARD ON VARIOUS OCCASIONS BUT EVERY TIME ADJ OURNMENT WAS SOUGHT AND NO EFFORTS WERE MADE TO REPRESENT THE CA SE BEFORE ANY OF THE LOWER AUTHORITY AND THEREFORE, THE APPEAL HAS RIGHT LY BEEN DECIDED AGAINST THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE CONCUR WITH THE STAND OF LD. DR THAT THE ASSESSEE FAILED TO AVAIL THE SEVERAL OPPORTUNITIES BEING PROVIDED TO HIM BY LD. CIT(A) AND THE ASSESSEE DID NOT MAKE ANY EFF ORTS TO PURSUE THE SAME. HOWEVER, AT THE SAME TIME, IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFE CTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HI S CASE. THEREFORE, WE SEE NO HARM IN PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST HIS CLAIM BEFORE LD. CIT(A). THEREFORE, THE MATTER IS RESTORED BACK TO FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION WITH DIRECTION TO ASSESSEE TO SUBSTANTIATE HIS CLAIM FORTHWITH FAILING WHICH LD. CIT(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. ITA NO 6904/MUM/2016 NEELKANTH DEVELOPERS ASSESSMENT YEAR 2012-13 4 7. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 18. 08.2017 SR.PS:- THIRUMALESH ! / COPY 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, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI