SHIVAJI B. SHAH, MUMBAI V. ITO WD 23(3)(3), MUMBAI

ITA 8437/MUM/2010

• Counselvise Citation: 843719914 RSA 2010
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 03-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: M G SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHIRI RAJENDRA SINGH, A.M. ITA NO. : 8437/MUM/2010 ASSESSMENT YEAR : 2005-06 SHRI SHIVAJI B. SHAH 302, SNEHA APRT, MULUND (W), MUMBAI-400 080 PAN NO: AKMPS 4447 D VS. ITO, WAR D 23 ( 3 )( 3 ), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M. G. SHAH RESPONDENT BY : SHRI P.C. MAURYA DATE OF HEARING : 01.12.2011 DATE OF PRONOUNCEMENT : 01.12.2011 ORDER PER RAJENDRA SINGH (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 29.09.2011 OF THE LD. CIT(A)-33 FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSEE IN THIS APPEAL HAS CHALLENGED THE ORDER OF CIT(A) ON THE GROUND THAT THE SAME WAS PASSED WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. THE FACTS IN BRIEF ARE THAT THE AO IN THE ASSESS MENT ORDER HAD DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE ON ACCOUNT OF INTEREST, WHICH WAS CHALLENGED BY THE ASSESSEE BEFO RE CIT(A). IN THE APPELLATE ORDER, CIT(A) HAS MENTIONED THAT NOBODY A PPEARED ON BEHALF OF THE ASSESSEE ON THREE DIFFERENT OCCASIONS WHEN T HE APPEAL HAD BEEN ITA NO :8437/MUM/2010 SHRI SHIVAJI B. SHAH 2 FIXED FOR HEARING. HE HAD, THEREFORE, DISMISSED THE APPEAL FOR NON PROSECUTION WITHOUT PASSING ANY ORDER ON THE MERIT OF THE CASE. AGGRIEVED BY THE SAID DECISION THE ASSESSEE IS IN A PPEAL BEFORE THE TRIBUNAL. 3. BEFORE ME, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD NOT RECEIVED ANY NOTICE OF HEARING AND , THEREFORE, CIT(A) WAS NOT CORRECT IN STATING THAT NOTICE HAD BEEN REC EIVED. IT WAS POINTED OUT THAT ON THE SAME ADDRESS, THE NOTICE SENT BY TH E TRIBUNAL HAS BEEN RECEIVED BY THE ASSESSEE AND, THEREFORE, THE ASSESS EE WOULD HAVE DEFINITELY RECEIVED THE NOTICE IN CASE THE SAME HAD BEEN SERVED ON THE ASSESSEE. IT WAS ACCORDINGLY, REQUESTED THAT THE OR DER OF THE CIT(A) SHOULD BE SET ASIDE. 4. I HAVE PERUSED THE RECORDS AND CONSIDERED THE MA TTER CAREFULLY. CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION AFTER OBSERVING THAT THE NOTICE HAD BEEN ISSUED THR EE TIMES BUT NO ONE APPEARED. CIT(A) IN THE ORDER HAS NOT GIVEN THE DAT ES ON WHICH THE NOTICES WERE SERVED ON THE ASSESSEE. UNDER THESE CI RCUMSTANCES, THE CLAIM OF THE ASSESSEE THAT NO NOTICE HAD BEEN RECEI VED HAS TO BE ACCEPTED. MOREOVER, CIT(A) HAS NOT PASSED ANY ORDER ON THE MERIT OF THE CASE. UNDER THE PROVISIONS OF SECTION 250(6), CIT(A ) IS REQUIRED TO DISPOSE OF THE APPEAL IN WRITING AND HE IS ALSO REQ UIRED TO STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR DECISION. THUS, EVEN IN EX PARTE ORDER, CIT(A) IS R EQUIRED TO PASS AN ORDER ON MERIT OF THE CASE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, WHICH HAS NOT BEEN DONE IN THIS CASE. THE ORDER OF THE CIT(A), THEREFORE, CANNOT BE SUSTAINED ON THIS GROUND ALSO. I, THEREFO RE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO HIM FOR PASSING A FRESH ORDER AFTER ALLOWING AN OPPORTUNITY OF HEARIN G TO THE ASSESSEE. ITA NO :8437/MUM/2010 SHRI SHIVAJI B. SHAH 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON TO DAY I.E. 1 ST DECEMBER, 2011. SD/ - ( RAJENDRA SINGH ) ACCOUNTANT MEMBER MUMBAI, DT: 01/12/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, SMC - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI