RAJESH MADANLAL KAMRA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 18(2), MUMBAI

ITA 777/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0598 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 08-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE; THAT TOO
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI R. C. SHARMA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 777 / MUM/ 201 8 ( / ASSESSMENT YEAR: 20 07 - 08 ) RAJESH MADANLAL KAMRA 101 SIMRAN PLAZA 3 RD AND 4 TH ROAD CORNER KHAR WEST MUMBAI - 400052 . / VS. ACIT 18(2) MUMBAI PIRAMAL CHEMBER PAREL MUMBAI - 400012. ./ ./ PAN/GIR NO. : AKOPK 4799 E ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 12 . 11 .201 8 / DATE OF PRONOUNCEMENT : 30. 11 . 201 8 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEA L AGAINST THE ORDER DATED 28 . 06 .201 2 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 29 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 0 7 - 08 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO IN VIOLATION OF RULES OF NATURAL JUSTICE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO REVENUE BY : SHRI AJAY KUMAR OJJA (DR) A SSESSEE BY: NONE ITA NO. 777 / M/201 8 A.Y.20 07 - 08 2 WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE FULY AND PROPERLY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE DISALLOWANCE AS DEBIT NOTE AS PERTAINING TO COMPONENTS/EQUIPMENT LOSSES INCURRED BY RETAILERS AND THE L EARNED CIT(A) ERRED IN NOT DIRECTING SO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN NOT DEALING WITH THE GROUND OF APPEAL NO. 3 TO 5 RAISED BEFORE HIM. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN PASSING EX PARTY ORDER WITHOUT SENDING NOTICE ON THE COMMUNICATION ADDRESS ON RECORD. THUS WITHOUT GIVING AN OPPORTUNITY TO ASSESSEE BEING HEARD. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INC OME ON 31 . 10 .20 0 7 DECLARING TO TAL I NCOME TO THE TUNE OF RS.38,85,610/ - FOR THE A.Y. 2007 - 08 . T HE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT, 1961 ON 26.03.2009 RAISING DEMAND TO THE TUNE OF RS. NIL . THERE WAS SURVEY ACTION U/S 133A OF THE ACT IN THIS CASE ON 14.02.2007 AND THE ASSESSEE HAD DECLARED ADDITIONAL INCOME TO THE TUNE OF RS.30,00,000/ - FOR THE A.Y. 2007 - 08. NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, THE ASSESSMENT OF THE ASSESSEE WAS COMPLETED AFTER ASSESSING THE TOTAL INCOME TO THE TUNE OF RS.42,68,490/ - . FEELING AGGRIEVED, T HE ASSESSEE FILE D AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BY VIRTUE OF ORDER DATED 28.06.2012 , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT A PPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE L D. REPRESENTATIVE OF THE DEPARTMENT AND HAS GONE THROUGH THE RECORD CAREFULLY . WE NOTICED THAT THE CIT(A) HAS PASSED THE ORDER IN QUESTION IN THE ABSENCE OF THE ASSESSEE. ITA NO. 777 / M/201 8 A.Y.20 07 - 08 3 THE MATTER OF CONTROV ERSY IS REQUIRED TO BE ADJUDICATED ON MERITS AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW IN THE INTEREST OF JUSTICE. SINCE THE MATTER OF CONTROVERSY HAS BEEN ADJUDICATED BY THE CIT(A) IN THE ABSENCE OF ASSESSEE, THEREF ORE, WE ARE OF THE VIEW THAT THE MATTER OF CONTROVERSY IS REQUIRED TO BE ADJUDICATED AT THE END OF THE CIT(A) 29, MUMBAI IN THE PRESENCE OF THE ASSESSEE OR BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . ACCORDINGLY, WE SET ASIDE THE FINDING OF THE CIT(A) AND DIRECT THE CIT(A) TO DECIDE THE MATTER OF AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 30. 11 . 2018 . SD/ - SD/ - ( R. C. SHARMA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 30. 11 . 2018 . VIJAY / 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 ITA NO. 777 / M/201 8 A.Y.20 07 - 08 4