HARITARA CONSTRUCTION CO, MUMBAI V. ITO RG 32(1)(5), MUMBAI

ITA 7121/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7269 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Principle of natural justice

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM & SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO . 7121 /MUM/201 6 ( / ASSESSMENT YEAR: 2009 - 10 ) HARITARA CONSTRUCTION CO. OFFICE NO. 101, MHATRE ROYALE CO OP. HSG. SOCIETY LTD, L.T. ROAD, DAHISAR(W) MUMBAI - 400068 / VS. ITO - 26(2)(2 ) C - 12, BANDRAKURLA COMPLEX, BANDRA (WEST) MUMBAI 400054. ./ ./ PAN/GIR NO. A AEFH1406M ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. DINKLEHARIA, AR / RESPONDENTBY : SHRI M. C. OMI NINGSHEN, DR / DATE OF HEARING : 1 9 /0 4 /201 8 / DATE OF PRONOUNCEMENT : 26/04/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 44 , MUMBAI, DATED 21.09.16 FOR AY 20 09 - 10 . 2 I.T.A. NO. 7121 /MUM/201 6 HARITARA CONSTRUCTION CO. 2. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT LD. CIT(A) HAD ERRED IN LAW AS WELL AS ON THE FACTS IN DISMISSING THE APPEAL EX - PARTE U/S 250(6) OF THE ACT WHICH IS ARBITRARY & UNJUSTIFIED. 3. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AN D WE HAVE ALSO GONE THROUGH THE ORDERS PASSED BY REVENUE AUTHORITIES AS WEL L AS MATERIAL PLACED ON RECORD. WE FIND THAT PARA NO. 3 OF THE ORDER OF LD. CIT(A), CATEGORICALLY MENTIONED THE CHART DEPICTING THE DATE OF ISSUE OF NOTICE, DATE FIXED FOR HEARING A ND ALSO THE REMARKS WITH REGARD TO THE NON - COMPLIANCE ON THE PART OF THE ASSESSEE. APPARENTLY, FROM THE RECORDS, THERE ARE NO ERRORS IN THE ORDERS PASSED BY LD. CIT(A) IN PROVIDING OPPORTUNITY TO THE ASSESSEE. WE ARE ALSO OF THE VIEW THAT IT WAS THE BOU NDED DUTY OF THE ASSESSEE OR HIS COUNSEL TO APPEAR BEFORE THE LD. CIT(A) IN COMPLIANCE OF THE NOTICE S ISSUED TO THE ASSESSEE. THE ASSESSEE HAD NOT ACTED WITH DUE DILIGENCE AND NO PLAUSIBLE REASONING HAVE BEEN SHOWN FOR NON - COMPLIANCE OF DIRECTIONS PASSED BY LD. 3 I.T.A. NO. 7121 /MUM/201 6 HARITARA CONSTRUCTION CO. CIT(A) AND FOR NOT PARTICIPATING BEFORE THE FIRST APPELLATE AUTHORITY. NEVERTHELESS THE PRINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIE S. ALTHOUGH IN THE PRESENT CASE ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES WAS GIVEN BUT STILL THE ASSESSEE HAS NOT APPEARED AND PARTICIPATED BEFORE THE FIRST APPELLATE AUTHORITY AND HAS NOW RAISED A PLEA THAT SUFFICIENT AND REASONABLE OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE. 4. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE ALLOW ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FO R CONTESTING THE APPEAL ON MERITS BEFORE LD. CIT(A). IN OUR VIEW, IF A FURTHER OPPORTUNITY TO THE ASSESSEE FOR CONTESTING HIS CASE BEFORE LD. CIT(A) IS ALLOWED, NO PREJUDICE 4 I.T.A. NO. 7121 /MUM/201 6 HARITARA CONSTRUCTION CO. WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESS EES CORRECT INCOME WILL BE COLLECTED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN , THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION AND WITHOUT COMMENTING ANYTHING ON THE MERITS OF THE OTHER GROUNDS RAISED BY THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT THE INTEREST OF J USTICE WOULD BE MET IN SET TING ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND REMITTING THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR PROVIDING FURTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST ITS CLAIM ON MERITS. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESS ION ON THE MERITS OF THE ISSUE S , WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, THIS GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 5 I.T.A. NO. 7121 /MUM/201 6 HARITARA CONSTRUCTION CO. 5. SINCE, WE DECIDED THE MAIN GROUND OF APPEAL AND RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR PROVIDING FURTHER OPPORTUNITY TO THE ASSESSEE, THEREFORE THE OTHER GROUNDS OF APPEAL BECOME ACADEMIC. 6 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSE SSEE STANDS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH APRIL, 2018. SD/ - SD/ - (R.C. SHARMA ) ( SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 26 . 04. 201 8 SR.PS . DHANANJAY / 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 F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI