DEEPAK K MOTWANI, MUMBAI V. DCIT - 12(3) (NOW ASSESSED WITH DCIT - 17(1)), MUMBAI

ITA 715/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4485 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIYA
• Section: 45(2)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI R. C. SHARMA , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 715 /MUM/2017 ( / ASSESSMENT YEAR: 2008 - 09 ) DEEPAK K. MOTWANI 501, TULSIANI CHAMBER, FREE PRESS, JOURNAL MARG, NARIMAN POINT, MUMBAI - 400021 / VS. DCIT 13(3) (NOW ASSESSED WITH DCIT - 17(1)) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 421301 ./ ./ PAN/GIR NO. A A CPM8745N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRAKASH JOTWANI , AR / RESPONDENT BY : SHRI CHAITANYA ANJARIYA , DR / DATE OF HEARING : 31/07 /201 8 / DATE OF PRONOUNCEMENT : 01.08 .2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL S FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEAL) 28, MUMBAI, DATED 10.11.16 F OR AY 2008 - 09 . 2 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI 2 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT L D. CIT(A) ERRED IN LAW AS WELL AS ON FACTS WHILE DISMISSING APPEAL WITHOUT GRANTING PROPER OPPORTUNITY OF HEARING. IT WAS FURTHER SUBMITTED BY LD. AR THAT LD. CIT(A) ALSO ERRED IN CONFIRMING THE ADDITION S BY NOT CONSIDERING THE WRITTEN SUBMISSION FILED BY THE ASSESSEE. IT WAS ALSO SUBMITTED THAT HIS CA, MR. PRASAD SALASKAR, ATTENDED THE OFFICE OF LD. CIT(A) ON 10.11.16 AND ON 11.11.16 HAD ALSO FILED THE WRITTEN SUBMISSIONS, BUT T HE LD. CIT(A) BY HIS ORDER DATED 10.11.16 DISMISSED THE APPEAL AND HAS NOT CONSIDERED THE SUBMISSION FILED BY THE ASSESSEE. IN ORDER TO SUPPORT ITS SUBMISSIONS, THE ASSESSEE HAS FILED THE AFFIDAVIT OF HIS CHARTED ACCOUNT NAMELY MR. PRASAD SALASKAR DATED 01 .08.18 AND THE SAME IS REPRODUCED BELOW: - AFFIDAVIT IN EVIDENCE I, PRASAD GANGADHAR SALASKAR, AGE 46 HAVING ADDRESS AT 101, BAJAJ BHA VAN, NARIMAN POINT, MUMBAI 400021 DO HEREBY SOLEMNLY AFFIRM AND STATE AS FOLLOWS: - 1. I SAY THAT I REPRESENTED DEEPAK KANA YO MOTWANI IN THE ABOVE APPEAL AGAINST THE ORDER OF THE DCIT 12(3) 3 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI DATED 29 - 10 - 2010 FOR ASSESSMENT YEAR 2008 - 2009 THE ORDER OF WHICH PASSED ON 10 - NOV - 2016. 2. I SAY THAT DURING THE ASSESSMENT PROCEEDINGS, I HAD PERSONALLY DEPOSED BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS). 3. I SAY THAT THAT THE MATTER WAS FIXED ON 11 - 08 - 2014 WHEN I WAS IN GHANA. I LEFT FOR GHANA ON 05 - AUG - 2014 AND HAD TO CUT SHORT MY VISIT AND REACHED INDIA ON 16 - AUG - 2014 AS MY FATHER WAS HOSPITALIZED. 4. I SAY THAT MY FATHER DIED ON AUGUST 31, 2014. BEING THE ONLY SON I HAD TO ATTEND TO ALL THE RELIGIOUS CEREMONY. 5. I SAY THAT THE ADJOURNED DATE OF SEPTEMBER 15, 2014 COULD NOT BE ATTENDED ON REASONS MENTIONED IN PARA 3 AND 4. 6. I SAY THAT ON MARCH 18, 2015 THE MATTER WAS ADJOURNED B Y THE OFFICE OF THE CIT(A) DUE TO THE ABSENCE FROM CIT(A). THE MATTER WAS ADJOURNED TO NOVEMBER 16, 2015. 7. I SAY THAT MATTER WAS NOT ATTENDED ON NOVEMBER 16, 2015 AS I INADVERTENTLY NOTED THE DATE AS NOVEMBER 17, 2015. THE MATTER WAS ATTENDED ON NOVEMBER 17, 2015 AND TOOK PERMISSION OF THE CIT(A) TO PARDON ME FOR THE 4 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI MISTAKE. I WAS INFORMED BY HIS OFFICE THAT A NEW NOTICE WOULD BE ISSUED TO ME. 8. I SAY THAT THE NOTICE WAS ISSUED FIXING THE DATE ON 26 - 08 - 2016. IT SAY THAT MATTER WAS ATTENDED AND WAS MADE TO WAIT OUT AS THE FILE WAS NOT AVAILABLE AS THE FILES WERE BEING SHIFTED. THE WRITTEN SUBMISSION WAS NOT ACCEPTED DUE TO ABSENCE OF FILE. THE DATE WAS GIVEN FOR 17 - OCT - 2016. 9. I FURTHER SAY THAT I DID REQUESTED THE OFFICE OF THE CIT(A) AND HIS OFFICE TO PLEASE RE - CONSIDER DATE AS I WAS TRAVELLING FROM OCTOBER 12, 2016 AND RETURN TO INDIA ON OCTOBER 26, 2016 TO TORONTO CANADA. I SAY THAT I WAS INFORMED BY HIS OFFICE THAT TO GIVE A DATE BEYOND 17TH OCTOBER CANNOT BE GIVEN AND THAT I SHOULD APPLY FOR AN ADJO URNMENT. 10.1 SAY THAT IN MY ABSENCE, A REQUEST FOR THE ADJOURNMENTS WAS MADE AND THE MATTER WAS ADJOURNED TO NOVEMBER 10, 2016. 11. I SAY THAT THAT THE MATTER WAS ATTENDED ON NOVEMBER 10, 2016 HOWEVER I WAS VERY LATE FOR THE HEARING. I DID TRY TO APPROACH THE CIT(A) THROUGH HIS OFFICE AND WAS DENIED ENTRY. A REQUEST WAS MADE TO ACCEPT THE WRITTEN SUBMISSION WHICH WAS DENIED AGAIN. I WAS INFORMED TO ATTEND THE OFFICE NEXT DAY THAT IS NOVEMBER 11, 2016 IN THE MORNING. 5 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI 12. I SAY THAT ON NOVEMBER 11, 2016 THE MATTER ATTENDED AND WAS DIRECTED TO MAKE THE SUBMISSION IN THE TAPAL WHICH WAS DONE HOWEV ER NO HEARING WAS GRANTED TO ME. SOLEMNLY AFFIRMED AT MUMBAI ON THIS 31 ST DAY OF JULY 2018 PRASAD GANGADHAR SALASKAR [DEPONENT] 3 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAD INTENTIONALLY NOT APPEARED BEFORE LD. CIT(A) AND THE ORDERS PASSED BY LD. CIT(A) NEEDS NO INTERFERENCE . 4 . WE HAVE HEARD THE COUNSELS FOR B OTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY REVENUE AUTHORITIES. FROM THE RECORDS, WE NOTICED THAT IN THE FIRST ROUND OF LITIGATION, LD. CIT(A) DISMISSED THE APPEAL AS UN - ADMITTED ON 30.11.11 SINCE THE APPEAL WAS NOT IN ACCORDANCE WITH RULE 45(2) OF I.T. RULES AND ON ACCOUNT OF NON - ATTENDANCE. ON FURTHER APPEAL TO HONBLE ITAT, THE SAME WAS RESTORED BACK VIDE ORDER DATED 17.09.13. WE ALSO NOTICED THAT AS 6 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI PER THE RECORD, THE APPEAL WAS AGAIN RE - FIXED FOR 11.08.14 AND WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE. THEREAFTER, THE APPEAL WAS AGAIN ADJOURNED TO SEVERAL OCCASION AND ULTIMATELY LAST OPPORTUNITY WAS GRANTED BY LD. CIT(A) FOR 10.11.16. BUT EVEN INSPITE OF THAT, NONE APPEAR ON BEHALF OF THE ASSESS EE, CONSEQUENTLY, THE APPEAL WAS DISMISSED EX - PARTE BY CONSIDERING THE MATERIAL PLACED ON RECORD. NOW BEFORE US, ALTHOUGH THE ASSESSEE HAS MADE SUBMISSIONS TO CHALLENGE THE ORDER OF LD. CIT(A) AND IN THIS RESPECT, A DETAILED AFFIDAVIT OF THE CA HAS ALSO BEEN FILED. ON THE CONTRARY, NO AFFIDAVIT HAS BEEN FILED BY THE REVENUE TO REBUT THE CONTENTS CONTAINED IN THE SAID AFFIDAVIT. AFTER HEARING THE PARTIES AT LENGTH, ALTHOUGH WE ARE NOT CONVINCED WITH THE REASONING PUT FORTH BY THE ASSESSEE FOR NON - APPEARA NCE BEFORE LD. CIT(A) AS WE ARE OF THE VIEW THAT IT IS THE BOUNDED DUTY OF THE ASSESSEE OR HIS REPRESENTATIVE TO APPEAR BEFORE THE AUTHORITIES ON EACH AND EVERY DATE OF HEARING AND TO ASSIST AND COOPERATE THE AUTHORITIES FOR THE EARLY DISPOSAL OF THE CASE/APPEAL. 7 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND KEEPING IN VIEW THE SUBSTANTIAL CAUSE OF JUSTICE , WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY , WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT(A) THEN IN THAT EVENTUALITY , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXE S DUE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . 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, WE SET ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND THEREAFTER PASS AFRESH ORDER ON ALL THE GROUNDS RAISED BY THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE LD. CI T(A) WITHIN 60 DAYS FROM TODAY AND COOPERATE IN EARLY DISPOSAL OF THE APPEAL BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY 8 I.T.A. NO. 715 /MUM/201 7 DEEPAK K. MOTWANI BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. RESULTANTLY THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED . 5 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT O N 1 ST AUGUST , 201 8. SD/ - SD/ - ( R. C. SHARMA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01 . 0 8 .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