MR JACOB VERGHESE, MUMBAI V. ITO 26 (1)(4), MUMBAI

ITA 6953/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1758 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 11-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 6953 /MUM/2019 ASSESSMENT Y EAR: 2013 - 14 MR. JACOB VARGHESE, 1902, SAI SAPHIRE, BLDG. NO. 04, POWAI VIHAR COMPLEX, MUMBAI - 40007 6 PAN: AAFPV0425P VS. ITO 26 (1) (4), C - 11, 7 TH FLOOR, PRATAYKSHA KAR BHAVAN, BKC, BANDRA (E) - 400051 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SAURABH KUMAR RAI (D R ) DATE OF HEARING : 24 /05 /202 1 DATE OF PRONOUNCEMENT: 04 / 0 6 /202 1 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.08 .2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3 8 , MUMBAI FOR THE ASS ESSM ENT YEAR 2013 - 14 . 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NONE WAS PRE SENT ON BEHALF OF THE ASSESSEE. HOWEVER, THE ASSESSEE HAS F ILED LETTER DATED 13.05.2021 SEEKING ADJOURNMENT. CONSIDERING THE NATURE OF DISPUTE INVOLVED IN THE PRESENT APPEAL, I A M NOT I NCLINED TO ACCEDE TO ASSESSEES REQUEST FOR ADJOURNMENT. HENCE, I PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE WITH THE ASSISTANCE OF LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YE AR UNDER DISPUTE, THE ASSESSEE HAD FILED HIS RETURN OF INCOME ON 30.09.2013 2 ITA NO. 6953 / MUM/2019 ASSESSMENT YEAR: 20 13 - 1 4 DECLARING TOTAL INCOME OF RS. 8,07,658/ - . ASSESSMENT IN CASE O F THE ASSESSEE WAS COMPLETED UNDER SECTION 143 (3) OF T HE ACT VIDE ORDER DATED 29.03.2016 DETERMINING THE TOTAL INCOME AT RS. 33,16,830/ - . AGAINST THE ASSESSMENT ORDER SO PASSED THE ASSESSEE PR EFERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) . THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY THE FIRST A PPELLAT E AUTHORITY IN LIMINE VIDE THE IMPUGNED ORDER. 4. I HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. PRIMA F ACIE, LEARNED COMMISSIONER (APPEALS) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE , THAT T O O, IN AN EX - PARTE ORDER . THE REASON BEING , THE ASSESSEE HAD FILED THE APPEAL MANUALLY AND NOT ELECTRONICALLY AS PER THE EXTANT RULE AND CI RCULAR ISSUED BY CBDT REQUIRING FILING OF APPEAL BEFORE THE FIRST APPELL ATE AUTHORITY ELECTRONICALLY FROM W.E.F. 15.0 6.2016. IT FURTHER APPEARS FROM T HE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) A SINGLE SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE SEEKING HIS RESPONSE BY 30.08.2019 AND SINCE NO REPLY WAS RECEIVED FROM THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) DECIDED THE APPEAL EX - PARTE WITHOUT P ROVIDING FURTHER OPPORTUNITY TO THE ASSESSEE. OF COURSE, WHIL E DISMISSING THE APPEAL, LEARNED COMMISSIONER (APPEALS) HAS GRANTED LIBERTY TO THE ASSESSEE TO AGAIN FILE THE APPEAL ELECTRONICALLY AND SEEK CONDONATION OF AP PEAL. IN MY VIEW , BEFORE DECIDING THE APPEAL EX - PARTE, LEARNED COMMISSIONER (APPEALS) SHOULD HAVE PROVIDED REASONABLE OPPORTUNITY TO THE ASSESSEE TO RECTIFY THE DEFECT , IF ANY , IN FILING THE APPEAL . IN THE AFORESAID VIEW OF THE MATTER, I DEEM IT APPROPRIAT E TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND REST ORE THE MATTER BACK TO HIS FILE FOR AFRESH ADJUDICATION. IN CASE THE ASSESSEE HAS NOT FILED THE APPEAL IN ELECTRONIC FORM YET , HE IS DIRECTED TO DO SO WITHIN A PERIOD OF TWO WEEKS FROM THE DATE OF RECEIPT OF THIS ORDER. ON FILING OF THE APPEAL BY THE ASSESSEE IN PURSUANCE TO THE AFORESAID DIRECTION, THE LEARNED COMMISSIONER (APPEALS) WOULD DO WELL TO CONDONE THE DELAY , IF ANY , IN FILING THE APPEAL AND DECIDE THE APPEAL ON MERITS AFT ER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES . 3 ITA NO. 6953 / MUM/2019 ASSESSMENT YEAR: 20 13 - 1 4 5 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH JUNE , 2021 . SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 04 / 06 /202 1 ALINDRA, PS / 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 . //TRUE COPY// / BY O RDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI