RAVINDAR WALIA, MUMBAI V. ACIT 11(1), MUMBAI

ITA 7275/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5038 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 19-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 25-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALMAN KHAN
• Assessee Lawyers: BHUPENDRA WALIA FO
• Keywords: Opportunity of being heard; Assessment record

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.7275/MUM/2010 . / ITA NO.1373/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2007-08 SHRI RAVINDRA WALIA, 401, A.N.CHAMBERS, TURNER ROAD, BANDRA(WEST), MUMBAI 400050 ' ' ' ' / VS. THE ACIT 11(1), MUMBAI. $ ./ % ./ PAN/GIR NO. : AAJPW 9207C ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) $& ) / APPELLANT BY: SHRI BHUPENDRA WALIA F/O. ASSESSEE '($& * ) / RESPONDENT BY : SHRI SALMAN KHAN. ' * + / DATE OF HEARING : 19/09/2013 ,-# * + / DATE OF PRONOUNCEMENT : 19/09/2013 . / O R D E R PER I.P.BANSAL, J.M: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. THE Y ARE DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-3,MUMBAI DATED 17/0 8/2010 FOR ASSESSMENT YEAR 2007-08. THE GROUNDS RAISED IN BOTH THESE APPEALS READ AS UNDER: GROUNDS RAISED IN ITA NO.7275/MUM/2010: 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE APPELLANT BE ALLOWED TO CONTEND ON MERITS AND FACTS OF THE CASE OF RS.2,88,14,556/- ON ACCOUNT OF ENTRIES AS PER VARIOUS DOCUMENTS IMPOUND ED DURING THE COURSE OF . / ITA NO.7275/MUM/2010 . / ITA NO.1373/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2007-08 2 SURVEY ACTION WITHOUT CONSIDERING THE SUBMISSION MA DE BY THE APPELLANT FULLY EXPLAINING DETAILS OF THE SAME AT THE TIME OF ASSES SMENT. 2. THE APPELLANT BE GIVEN AN OPPORTUNITY BY ID. CIT (A) TO MAKE SUBMISSIONS SO AS TO ENSURE THE APPELLANT IS NOT DENIED NATURAL JUSTI CE. GROUNDS RAISED IN ITA NO.1373/MUM/2012 : BEING AGGRIEVED BY THE ORDER OF LEARNED LOWER AUTHO RITIES, THIS APPEAL PETITION IS BEING FILED ON THE FOLLOWING ALTERNATIVE GROUNDS OF APPEAL EACH OF WHICH MAY PLEASE BE TREATED SEPARATELY WITHOUT PREJUDICE TO O NE ANOTHER 1. THE LEARNED CIT (A) ERRED IN CONFIRMING THE INCO ME OF RS. 2,23,71,500/- ASSESSED BY THE LEARNED ACIT (AS AGAINST THE LOSS R ETURN (REVISED) OF RS. 65,02,070 FILED BY THE APPELLANT. 2. THE LEARNED CIT (A) ERRED IN CONFIRMING AN ADDIT ION OF RS.2,88,14,556/- MADE BY THE LEARNED ACIT, BASED ON SOME WRITINGS/ENTRIES IN PAPERS IMPOUNDED IN THE COURSE OF SURVEY PROCEEDINGS. THE LEARNED CIT (A) E RRED IN NOT APPRECIATING THAT IN THE ASSESSMENT PROCEEDINGS THE APPELLANT HAD FULLY EXPLAINED EACH AND EVERY ENTRY/WRITING IN REFERENCE IN THE SAID IMPOUNDED PA PERS. 3. THE LEARNED CIT (A) ERRED IN NOT CONSIDERING THE DETAILED EXPLANATIONS FILED BY THE APPELLANT IN THE COURSE OF ASSESSMENT PROCEEDIN GS WHICH WERE ON THE ASSESSMENT RECORDS. IT IS RESPECTFULLY SUBMITTED TH AT THE LEARNED CIT (A) OUGHT TO HAVE CONSIDERED THESE SUBMISSIONS SO AS TO DECIDE T HE APPEAL ON MERITS. 4. THE LEARNED CIT (A) ERRED IN DECIDING THE APPEAL EX-PARTE WITHOUT CONSIDERING THE DETAILED SUBMISSIONS MADE BY THE APPELLANT IN T HE COURSE OF ASSESSMENT WHICH WERE VERY MUCH ON RECORD AND THUS DECIDING TH E APPEAL EX-PARTE AND WITHOUT CONSIDERING THE FACTS OF THE CASE AND THE S UBMISSIONS MADE ON MERITS. 5.IT IS PRAYED THAT THE APPEAL OF THE APPELLANT MAY BE CONSIDERED ON MERITS AFTER GIVING FAIR OPPORTUNITY OF HEARING. 6. THE LEARNED ACIT ERRED IN LEVYING INTEREST U/S. 234A/234B/234C. 2. IT WAS NOTICED THAT ITA NO.7275/MUM/2010 WAS FIL ED ON 25/10/2010 AND SUBSEQUENTLY ASSESSEE HAS AGAIN FILED AN APPEA L WHICH I.E. ITA NO. 1373/MUM/2012, WHICH WAS FILED ON 29/2/2012. THE S UBSEQUENT APPEAL APPEARS TO HAVE BEEN FILED UNDER MISTAKEN BELIEF TH AT ASSESSEE DID NOT EARLIER FILE THE APPEAL. WITH ITA NO.1373/MUM/2012 ASSESSE E HAS ALSO FILED CONDONATION APPLICATION FOR DELAY IN FILING THE APP EAL. IN THIS VIEW OF THE SITUATION, AS EARLIER APPEAL FILED BY THE ASSESSEE I.E. ITA NO.7275/MUM/2010, WHICH IS ALSO A COMPETENT APPEAL, THE SECOND APPEAL FILED BY THE ASSESSEE SHALL BECOME INFRUCTUOUS. . / ITA NO.7275/MUM/2010 . / ITA NO.1373/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2007-08 3 3. DURING THE COURSE OF HEARING FATHER OF THE ASSES SEE WAS PRESENT AND IT WAS OBSERVED THAT THE ORDER PASSED BY LD. CIT(A) IS AN EX-PARTE ORDER. IT IS WRITTEN IN THE ORDER PASSED BY LD. CIT(A) THAT HEAR ING OF THE APPEAL WAS FIXED FOR FOUR DATES NAMELY, ON 22/4/2010, 11/5/2010, 15 /6/2010 AND 16/08/2010. IT IS FURTHER WRITTEN THAT ON FIRST TW O DATES NAMELY, ON 22/4/2010 AND 11/5/2010 ASSESSEES AUTHORIZED REPRE SENTATIVE SOUGHT ADJOURNMENT ON THE GROUND THAT CERTAIN DETAILS WERE REQUIRED TO BE PREPARED AND THE LD. AR OF THE ASSESSEE WAS UNWELL. IN RESP ECT OF OTHER TWO DATES, IT IS MENTIONED BY LD. CIT(A) THAT THEY WERE NEITHER ATT ENDED NOR ANY SUBMISSIONS WERE MADE. THEREFORE, LD. CIT(A) HAS CONFIRMED THE ASSESSMENT ORDER. THE MAIN GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPEA L IS THAT LD. CIT(A) DID NOT PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD, THERE FORE, PROPER OPPORTUNITY SHOULD BE DIRECTED TO BE GIVEN. THE FATHER OF TH E ASSESSEE, DURING THE COURSE OF HEARING ASSURED THAT THE ASSESSEE WILL PROVIDE F ULL CO-OPERATION DURING THE COURSE OF HEARING OF APPEAL IF THE MATTER IS RESTOR ED TO THE FILE OF LD. CIT(A). 4. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR TH AT PROPER OPPORTUNITY WAS GIVEN BY LD. CIT(A) AND ASSESSEE DOES NOT DES ERVE ANOTHER OPPORTUNITY. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THOUGH IT HAS BEEN WRIT TEN BY LD. CIT(A) THAT ON TWO DATES NOBODY ATTENDED ON BEHALF OF ASSESSEE I.E . 15/06/2010 AND 16/08/2010, HOWEVER, IT HAS NOT BEEN MENTIONED THAT WHETHER OR NOT THESE DATES WERE DULY INFORMED TO THE ASSESSEE. HOWEVER, TAKING INTO CONSIDERATION THAT IT IS A HIGH PITCHED ASSESSMENT AND WITHOUT GI VING ADEQUATE OPPORTUNITY TO THE ASSESSEE SUCH A BIG LIABILITY CANNOT BE FASTEN ED UPON THE ASSESSEE, THEREFORE, KEEPING IN VIEW THE INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT THIS APPEAL SHOULD BE RESTORED BACK TO THE FILE OF LD. C IT(A) WITH A DIRECTION TO GIVE THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING AN D AFTER GIVING SUCH . / ITA NO.7275/MUM/2010 . / ITA NO.1373/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2007-08 4 OPPORTUNITY THE APPEAL FILED BY THE ASSESSEE WILL BE RE-ADJUDICATED AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. TO ENSU RE COMPLIANCE FROM THE ASSESSEES SIDE FOR APPEARING BEFORE LD. CIT(A) WE DIRECT THE ASSESSEE TO APPEAR BEFORE LD. CIT(A) ON 16/12/2013. FATHER OF THE ASS ESSEE NOTED THE AFOREMENTIONED DATE. 6. IN THE RESULT, ITA NO.7275/MUM/2010 IS CONSIDERE D AS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID AND IT A NO.1373/MUM/2012 BEING DUPLICATE APPEAL FILED UNDER MISTAKEN BELIEF IS DISMISSED AS HAVING BECOME INFRUCTUOUS IN VIEW OF OUR DECISION TAKEN I N ITA NO.7275/MUM/2010 AND IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09/2013 . * ,-# / 0'1 19/09/2013 - * 2 3 SD/- S D/- ( / RAJENDRA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0' DATED 19/09/2013 . . . . * ** * '+45 '+45 '+45 '+45 65#+ 65#+ 65#+ 65#+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 582 '+' , , / DR, ITAT, MUMBAI 6. 29 : / GUARD FILE. .' .' .' .' / BY ORDER, (5+ '+ //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS