KANTILAL G. MEWADA, MUMBAI V. ITO 32(2)(2), MUMBAI

ITA 919/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0226 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR SINGH LD
• Assessee Lawyers: KINJAL BHUTA LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

ITA NO. 919/MUM/2017 KANTILAL G. MEWADA ASSESSMENT YEAR: 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE HONBLE SHRI PAWAN SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.919/MUM/2017 ( / ASSESSMENT YEAR: 2012-13) KANTILAL G. MEWADA A-502, GIRNAR TOWER CHS LTD. (OPP. NEW INDIAN OIL PETROL PUMP) SAI BABA NAGAR MIRA BHAYANDER ROAD MIRA ROAD (E), THANE-401 107. / VS. INCOME TAX OFFICER - 32(2)(3) MUMBAI ./ ./PAN/GIR NO. AAHPM-5350-Q ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : MS. KINJAL BHUTA- LD.AR REVENUE BY : MANOJ KUMAR SINGH-LD. DR / DATE OF HEARING : 12/11/2018 / DATE OF PRONOUNCEMENT : 05/12/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-44, MUMBAI [CIT(A)], APPEAL NO.CIT(A)-44/ITO-32(2)(2)/ITA-428/15-16 DATED 29/07/2016 ON LEGAL GROUNDS AS WELL AS ON MER ITS. THE ASSESSEE I.T.A. NO.919/MUM/2017 KANTILAL G. MEWADA ASSESSMENT YEAR: 2012-13 2 BEING RESIDENT INDIVIDUAL WAS ASSESSED ON BEST JUDGMENT BASIS U/S 144 ON 28/03/2015 WHEREIN THE INCOME OF THE ASSESSEE HA S BEEN ASSESSED AT RS.218.19 LACS AFTER CERTAIN ADDITIONS OF RS.209 .14 LACS AS AGAINST RETURNED INCOME OF RS.9.04 LACS FILED BY THE ASSESS EE ON 18/09/2012. THE ASSESSMENT WAS DONE ON BEST JUDGMENT BASIS SINCE THE ASSESSEE FAILED TO SUPPLY THE REQUISITE DETAILS / EVIDENCES AS CALLED FOR LD. ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. TH E STAND OF LD. AO, UPON CONFIRMATION BY FIRST APPELLATE AUTHORITY, IS UNDER APPEAL BEFORE US. 2. THE REGISTRY HAS NOTED A DELAY OF 135 DAYS IN FI LING THE APPEAL, THE CONDONATION OF WHICH HAS BEEN SOUGHT BY THE ASSESSE E VIDE APPLICATION DATED 15/10/2018 DULY SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE. UPON PERUSAL OF THE SAME, WE FIND THAT DELAY HAS BEEN AT TRIBUTED TO FREQUENT CHANGES OF CONCERNED CHARTERED ACCOUNTANTS BY THE ASSESSEE. ALTHOUGH THE PLEA WAS NOT FOUND TO BE VERY CONVINCI NG, HOWEVER, KEEPING IN VIEW THE FACT THAT THE ASSESSEE WAS AN I NDIVIDUAL AND SUFFERED HIGH PITCHED ASSESSMENT, THE BENCH FORMED AN OPINIO N THAT IN THE INTEREST OF JUSTICE, THE DELAY DESERVED TO BE CONDO NED WITH A COST OF RS.10,000/-. ACCORDINGLY, THE ASSESSEE WAS DIRECTED TO PAY THE SAME IN THE PRESCRIBED MANNER. THE PROOF OF PAYMENT OF THE COST HAS SUBSEQUENTLY BEEN PLACED ON RECORD. HENCE, THE DELA Y IS CONDONED AND WE PROCEED TO DISPOSE-OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING RESPECTIVE REPRESENTATIVES . 3. THE LD. AUHTORIZED REPRESENTATIVE [AR], MS. KINJAL BHUTA PLEADED FOR GRANT OF ANOTHER OPPORTUNITY OF BEING HEARD BEF ORE LOWER AUTHORITIES IN VIEW OF THE FACT THAT THE ASSESSEE COULD NOT BE REP RESENTED BEFORE LOWER I.T.A. NO.919/MUM/2017 KANTILAL G. MEWADA ASSESSMENT YEAR: 2012-13 3 AUTHORITIES. OUR ATTENTION HAS BEEN DRAWN TO THE DO CUMENTS PLACED IN THE PAPER-BOOK TO SUBMIT THAT THE ASSESSEE STOOD FAIR CHANCE OF SUBSTANTIATING HIS CASE. THE LD. DEPARTMENTAL REPRE SENTATIVE [DR], SHRI MANOJ KUMAR SINGH, SUBMITTED THAT THE ASSESSEE HAS CONSISTENTLY REMAINED NEGLIGENT IN REPRESENTING HIS CASE BEFORE LOWER AUTHORITIES. 4. UPON CAREFUL CONSIDERATION, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE AND ARTICLE 265 OF THE CONSTITUTION WHICH S TATES THAT NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY THE AUTHORITY OF L AW, WE DEEM IT FIT TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER BAC K TO THE FILE OF LD. AO FOR RE-ADJUDICATION AS PER LAW WITH A DIRECTION TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM FORTHWITH AS ASSURED BY LD. AR. 5. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH DECEMBER, 2018 SD/- SD/- (PAWAN SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 05/12/2018 SR.PS:- JAISY VARGHESE !'#$ # / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. * +!$, , , , / DR, ITAT, MUMBAI 6. + -./ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.