SHUJAT DILAWAR SAYED, MUMBAI V. ITO 21(3)(2), MUMBAI

ITA 7522/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8653 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 23-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E,MUM BAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.7522/MUM/2013 FOR (ASSESSMENT YEAR : 2009-10 ) SHUJAT DILAWAR SAYED, PROP: S.R. ENGINEERING CORPORATION, 14-C, KURLA INDUSTRIAL ESTATE, NARAYAN NAGAR, OFF: LBS MARG, N.S. ROAD, GHATKOPAR, MUMBAI-400086 PAN: AHZPS4912M VS. ITO-21(3)(2), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SABIR M. SHAIKH (AR) REVENUE BY : SHRI B.S. BIST (DR ) DATE OF HEARING : 23.01.2017 DATE OF PRONOUNCEMENT : 23.01.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JM: 1. THIS APPEAL BY ASSESSEE U/S 253 OF THE INCOME-TAX A CT (ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) [ FOR SHORT THE CIT(A)] 32, MUMBAI DATED 08.10.2013 FOR ASSESSMENT YEAR (AY) 20 09-10. THE ASSESSEE HAS ONLY ONE GROUND OF APPEAL I.E. THE LD. CIT(A) WAS NO T JUSTIFIED IN DISMISSING THE APPEAL BY INVOKING THE PROVISION OF SECTION 249 (4)(A) OF THE IT ACT, 1961 WITHOUT GIVING OPPORTUNITY TO REPRESENT THE MATTER AS THERE WAS TY POGRAPHICAL MISTAKE IN FORM NO.35. 2. BRIEF FACTS OF THE CASE ARE THAT THE AO LEVIED A PE NALTY OF RS. 47,879/- U/S 271B DATED 29.06.2012 AGAINST THE ASSESSEE HOLDING THAT ASSESS EE FAILED TO GET HIS ACCOUNT AUDITED FOR FINANCIAL YEAR (FY). AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) N OT ADMITTED THE APPEAL OF THE ASSESSEE HOLDING THAT HOLDING THAT ASSESSEE HAS NOT PAID TAX AS PROVIDED U/S 249(4). FURTHER AGGRIEVED BY THE ORDER OF LD CIT(A) THE ASS ESSEE FILED PRESENT APPEAL BEFORE US. 2 ITA NO. 7522/M/2013 SHUJAT DILAWAR SAYED 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR FOR THE ASSESSEE PLACED ON RE CORD THE COPY OF INCOME-TAX RETURN FOR RELEVANT AY SHOWING THAT ADVANCE TAX OF RS. 27,000/- WAS PAID. THE LD. AR OF THE ASSESSEE FURTHER ARGUED THAT DUE TO TYPOG RAPHICAL MISTAKE IN COLUMN NO.10 OF FORM NO. 35, THE ASSESSEE WRONGLY MENTIONED AS NO. WHICH RESULTED TO DRAW THE INFERENCE BY LD CIT(A) THAT NO TAX ON THE RETURN IN COME HAS BEEN PAID. THE MISTAKE COULD NOT BE RECTIFIED DUE TO INADVERTENCE AND OMIS SION. ON THE OTHER HAND, LD. DR FOR THE REVENUE ON GOING THROUGH THE COPY OF ACKNOWLEDG EMENT OF RETURN FAIRLY ADMITTED THAT ADVANCE TAX HAS ALREADY BEEN PAID BY THE ASSES SEE. WE REALLY APPRECIATE THE ASSISTANCE OF LD DR FOR THE REVENUE 4. WE HAVE CONSIDERED THE CONTENTIONS OF THE LD REPRES ENTATIVES OF THE PARTIES. WE HAVE SEEN THAT THERE IS IN FACT TYPOGRAPHICAL MISTAKE IN COLUMN NO. 10 OF FORM NO.35. THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR THIS REASO N ALONE. WE HAVE SEEN THAT LD. CIT(A) HAS NOT ISSUED ANY NOTICE OF HEARING OR NOTI CE FOR EXPLAINING THE REASON BEFORE DISMISSING THE APPEAL. KEEPING IN VIEW THE TYPOGRAPHICAL MISTAKE WHICH COULD NOT BE EXPLAINED IN ABSENCE OF ANY NOTICE OF FROM L D. CIT(A). WE ACCEPT THE APPEAL OF ASSESSEE AND RESTORE THE MATTER TO THE FILE OF LD. CIT(A) TO DECIDE THE CASE ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT LD. CIT(A ) SHALL AFFORD A REASONABLE AND FAIR OPPORTUNITY TO THE ASSESSEE. THE LD. AR OF TH E ASSESSEE IS ALSO DIRECTED TO BRING ON RECORD ALL THE MATERIAL AND EVIDENCE BEFORE THE LD. CIT(A). WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 3 RD JANUARY, 2017. SD/- SD/- (B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 23/01/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 3 ITA NO. 7522/M/2013 SHUJAT DILAWAR SAYED BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/