MADHUKAR SHETH, MUMBAI V. ADDL CIT RG 18(1), MUMBAI

ITA 7647/MUM/2010

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3608 (ITAT-MUMBAI)
• Duration Of Justice: 10 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN FACTS IN PASSIN G
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI M. BALAGANESH , AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 7647 /MUM/201 0 ( / ASSESSMENT YEAR: 20 07 - 08 ) MADHUKAR SHETH 603, ELIZABETH APTS, B.S.M. R OAD ELPHINSTONE (W), MUMBAI - 400013 . / VS. ADDL. CIT RANGE - 18(1) MUMBAI. ./ ./ PAN/GIR NO. : ANXPS1972P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 07/10/2020 /DATE OF PRONOUNCEMENT: 11 /11 /2020 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATE D 22.07. 2010 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 29 , MUMBAI (HEREINAFTER REFERRED TO AS THE CIT( A)) RELEVANT TO THE A.Y.2007 - 08 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN PASSIN G THE ORDER AND IN DETERMINING THE TOTAL INCOME OF THE APPELLANT AT RS.3,60,08,380/ - AS AGAINST RETURNED INCOME OF RS.2,74,19 ,647/ - . 2. THE LD. CIT(A) HAS ERRED IN PASSING THE ASSESSMENT ORDER AND MAKING ADDITION THEREIN WITHOUT GIVING EFFECTIVE OPPORTU NITY OF HEARING TO THE APPELLANT. THE ASSESSMENT ORDER HAS BEEN PASSED IN GROSS VIOLATIONS OF PRINCIPLES OF NATURAL JUSTICE. ASSESSEE BY : NONE REVENUE BY: SHRI O. P. MEENA (SR. AR) ITA NO. 7647/M/2010 A.Y.20 07 - 08 2 3. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS WRONGLY DISALLOWING THE EXPENDITURE RS.85,88,733/ - BEING EXPENDITURE TOWARDS INTER EST ON LOAN RS.31,21,609/ - , INTEREST ON DELAYED PAY IN CHARGES RS.44,84,892/ - AND PROFESSIONAL FEE RS.2,82,232/ - . 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY, ALTER AND/ OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3 . WE HAVE HEARD THE ARGUMEN T ADVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE CASE CAREFULLY . IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, T HEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE O RDER OF THE CIT(A) DATED 22 .07.2016 PASSED BY THE CIT(A) WE FIND THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE /REPRESENT ATIVE OF THE A SSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE ACCORDANCE WITH LAW . A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW . 4 . FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 5 . ACCORDINGLY IN THE INTEREST OF JUSTICE , WE REMIT THE ISSUE RAI SED IN THE APPEAL TO THE FILE OF THE LD. CIT(A). LD. CIT(A) IS DIRECTED TO CONSIDER THE ITA NO. 7647/M/2010 A.Y.20 07 - 08 3 ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING AFTER GIVING AN PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . THEREFOR E, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MAT TER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 11 /11 /2020 SD/ - SD/ - ( M. BALAGANESH ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 11 /11 /2020 VIJAY PAL SINGH (SR. PS) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI