VIJAY BABULAL SHAH, MUMBAI V. JT CIT 19 (2), MUMBAI

ITA 7109/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9933 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 19-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside; Audi alteram partem

Judgement Text

1 ITA 7109/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR (VICE PRESIDENT) AND SHRI SAKTIJIT DEY (JUDICIAL MEMBER) I.T.A NO.7109/MUM/2019 (ASSESSMENT YEAR : 2010-11) VIJAY BABULAL SHAH CC 7081, BHARAT DIAMOND BOURSE BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI-400 051 PAN : AADPS8453J VS JT.CIT-19(2), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI RAJESH S SHAH, AR RESPONDENT BY SHRI UJJAWAL KUMAR , DR DATE OF HEARING 06-07-2021 DATE OF PRONOUNCEMENT 26-07-2021 O R D E R PER: SAKTIJIT DEY, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DA TED 23-10-2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-30, MUMBAI FOR THE ASSESSMENT YEAR 2010-11. 2. THOUGH, THE ASSESSEE HAS RAISED A NUMBER OF GROU NDS IN THE MEMORANDUM OF APPEAL; HOWEVER, THE PRIMARY GRIEVANCE OF THE AS SESSEE IS AGAINST DISPOSAL OF APPEAL BY LEARNED COMMISSIONER (APPEALS) WITHOUT AF FORDING REASONABLE OPPORTUNITY OF BEING HEARD. 2 ITA 7109/MUM/2019 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. THE CHRONOLOGY OF EVENTS LEADING TO THE DISPOSAL OF ASSESSEES APPEAL BY LEARNED COMMISSIONER (APPEALS), AS NARRATED BEFORE US BY LE ARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE, IS AS UNDER:- S.NO PARTICULARS 1 11/07/2019 19/07/2019 THE APPELLANT'S REPRESENTATIVE APPEARED BEFORE THE LEARNED CIT(A) AND FILED DETAILS CONTAINING PAGES NO.1 TO7J. THE CIT(A) CALLED FOR PACKING LIST IN RESPECT OF ONE OF THE INVOICE. THE CASE WAS ADJOURNED TO 19/08/2019. 2 19/08/2019 THE APPELLANT REQUESTED THAT SINCE OTHER CASES OF T HE APPELLANT WERE ALSO FIXED ON 20/08/2019, THE SAME MAY BE FIXED ON 20/08/2019. 3 20/08/2019 THE CASES FOR A.Y.2011-12, A.Y.2013-14 AND A.Y.2014-15 WERE FIXED ON 23/08/2019, THE CIT(A) ADJOURNED THE CASE TO 23/08/2019. THE APPELLANT FIL ED A LETTER OF AN ADJOURNMENT AS PER THE DIRECTION OF THE CIT(A). 23/08/2019 4 23/08/2019 THE APPELLANT'S REPRESENTATIVE ATTENDED WITH THE DETAILS HOWEVER NO HEARING WAS TAKEN IN PLACE IN RESPECT OF ANY OF THE ASSESSMENT YEAR AND APPARENTLY IT WAS INFORMED THAT CIT(A) IS BUSY WITH SOME WORK. THE CLERK INFORMED THAT NEW DATE IN ALL FOUR CASES IS FIXED ON 05/12/2019 AND NEW NOTICE WILL BE ISSUED. 5 12/09/2019 19/09/2019 THOUGH ON THE LAST HEARING CASE WAS ADJOURNED TO 05/12/2019, THE NEW NOTICE SEEMS TO HAVE BEEN ISSUED ONLY FOR ONE YEAR, THE SAID NOTICES WERE RECEIVED BV EMAIL ONLY ON 19/10/2019 AT 7:41PM. WHICH WAS SATURDAY EVENING. A SCREEN SHOT OF THE NOTICE RECEIVED IS ATTACHED HEREWITH ALONG WITH ATTACHMENT. THE APPELLANT COULD SEND THE NOTICE TO THE AUTHORISED REPRESENTATIVE ONLY ON 22/10/2019 SINCE 21/10/2019 WAS ELECTION DAY OF MAHARASHTRA ASSEMBLY. ON 23/10/2019 WHEN THE REPRESENTATIVE WENT TO THE OFFI CE OF THE CIT(A), HE WAS INFORMED THAT ORDER HAS ALREA DY BEEN PASSED. 6 NO NOTICE IN RESPECT OF ENHANCEMENT U/S.251(1)(A) WAS ISSUED TO THE APPELLANT. EVEN THE NOTICE OF ENHANCEMENT IS NOT AVAILABLE ON THE PORTAL OF THE 3 ITA 7109/MUM/2019 INCOME TAX DEPARTMENT. THE LEARNED CIT(A) HAS ALSO NOT MENTIONED IN THE ORDER, THE DATE ON WHICH THE SO CALLED NOTICE U/S.251(1)(A) WAS ISSUED. HENCE NO NOTICE WAS ISSUED AND NO OPPORTUNITY WAS PROVIDED TO THE APPELLANT TO REBUT THE ENHANCEMENT OF THE ORDER OF AO. IT MAY ALSO BE STATED NOTICE OF ENHANCEMENT WAS ISSUED ON 25/11/2019 I.E. AFTER THE DATE OF ORDER PASSED BY THE CIT(A) IN RESPECT OF THE OTHER THREE YEARS. 4. ON A PERUSAL OF MATERIALS PLACED BEFORE US, WE F IND SUBSTANTIAL MERIT IN THE SUBMISSIONS OF LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. AS COULD BE SEEN FROM THE CHRONOLOGY OF EVENTS NOTED ABOVE, THE APPEAL WAS FINALLY FIXED FOR HEARING ON 19-09-2019. HOWEVER, WE HAVE NOTED THAT ON 19-10-2019, THE ASSESSEE RECEIVED A NOTICE THROUGH EMAIL FIXING THE DATE OF HEARING ON 23-10- 2019. BUT, WHEN ASSESSEES AUTHORISED REPRESENTATIV E WENT TO THE OFFICE OF LEARNED COMMISSIONER (APPEALS) ON 23-10-2019, HE WA S INFORMED THAT THE APPEAL HAS ALREADY BEEN DISPOSED OF. LEARNED AUTHORISED RE PRESENTATIVE HAS ALSO SUBMITTED BEFORE US THAT WITHOUT ISSUING A NOTICE OF ENHANCEMENT AS MANDATED UNDER SECTION 251(1)(A) OF THE ACT, LEARNED COMMISS IONER (APPEALS) HAS ENHANCED THE INCOME OF THE ASSESSEE. 5. AT THIS STAGE, WE DO NOT INTEND TO DIG DEEP INTO THE ALLEGATIONS MADE BY THE ASSESSEE REGARDING LACK OF OPPORTUNITY. SUFFICE TO SAY, INDIAN JUDICIAL SYSTEM IS FOUNDED ON THE GOLDEN RULES OF AUDI ALTERAM PARTEM . IN OTHER WORDS, AN AGGRIEVED PARTY SHOULD NOT BE CONDEMNED WITHOUT A F AIR HEARING. UPON CAREFUL CONSIDERATION OF MATERIAL FACTS, WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFORE LEARN ED COMMISSIONER (APPEALS). ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF LEA RNED COMMISSIONER (APPEALS) 4 ITA 7109/MUM/2019 AND RESTORE THE MATTER BACK TO HER FILE FOR DE NOVO ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE IS ALSO DIRECTED TO CO- OPERATE IN FINALISATION OF THE APPELLATE PROCEEDING S BEFORE LEARNED COMMISSIONER (APPEALS). 5. IN THE RESULT, APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 26/07/2021. SD/- SD/- (PRAMOD KUMAR ) (SAKTIJIT DEY) VICE PRESIDENT JUDICIAL MEMBER MUMBAI, DT : 26/07/2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI