CHATRABHUJ D. KAPADIA, MUMBAI V. DCIT 15(1), MUMBAI

ITSSA 25/MUM/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8063 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-09-2011
• Assessment Year: misc
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D EVI SINGH
• Assessee Lawyers: DR K SHIVRAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI C BENCH BEFORE SHRI D.MANMOHAN, VICE PRESIDENT & SHRI T.R.SOOD, ACCOUNTANT MEMBER I.T.(SS)A.NO.25/MUM/2010 BLOCK PERIOD 1-4-1995 TO 25-9-2001 CHATRABHUJ D. KAPADIA, 6, HANUMAN BUILDING, 67, MUMBADEVI ROAD, MUMBAI 400 003. PAN: AACPK 9547 N VS. DY. COMMISSIONER OF I.T., RANGE 15(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. K. SHIVRAM & MR. RAHUL HAKANI. RESPONDENT BY : MR. DEVI SINGH, CIT DR DATE OF HEARING: 06/09/2011 DATE OF PRONOUNCEMENT: 14-09-2011 O R D E R PER T.R.SOOD, AM: IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN RAISED WH ICH BASICALLY INVOLVE TWO ISSUES, VIZ., (I) THAT THE CIT(A) HAS P ASSED AN ORDER WITHOUT GIVING EFFECTIVE OPPORTUNITY AND (II) CONFIRMATION OF ASSESSMENT MADE U/S.153BD. 2. BOTH THE PARTIES HAVE BEEN HEARD. AFTER CONSIDER ING THE RIVAL SUBMISSIONS, WE FIND THAT ORIGINALLY THE DATE OF HE ARING WAS FIXED ON 15-12-2009 BY THE LD. CIT(A) WHEN NOBODY ATTENDED B UT ONLY AN ADJOURNMENT WAS APPLIED. THE CASE WAS ADJOURNED TO 22-12-2009 ON WHICH DATE SHRI V.C. SHAH CHARTERED ACCOUNTANT ATTE NDED BUT COULD NOT FILE HIS POWER OF ATTORNEY, THEREFORE, HE MADE REQUEST FOR AN IT(SS)A.25 OF 10 2 ADJOURNMENT AND THE CASE WAS ADJOURNED TO 12-1-2010 AT 11.00 A.M. NOBODY ATTENDED ON 12-1-10 AT 11.00 A.M AND IT SEEM S THE LD. CIT(A) PASSED THE ORDER. THE LD. COUNSEL OF THE ASSESSEE B ROUGHT TO OUR NOTICE COPY OF THE LETTER OF ADJOURNMENT FILED ON 1 2-1-2-10, AVAILABLE AT PAGE 25 OF THE PAPER BOOK. THIS ADJOURNMENT HAS BEE N REJECTED BY THE LD. CIT(A) BY OBSERVING THAT SAME WAS SUBMITTED AT 4.50 P.M. WHEREAS THE CASE WAS FIXED FOR 11.00 A.M. WHILE ARG UING THE CASE ON MERITS, LD. COUNSEL OF THE ASSESSEE BROUGHT TO OUR ATTENTION A COPY OF LETTER DATED 28-12-2007 AND POINTED OUT THAT ASSESS EE HAD ASKED FOR THE MATERIAL SEIZED DURING THE SEARCH FROM A THIRD PARTY, WHICH WAS NEVER SUPPLIED. THEREFORE, THERE WAS NO QUESTION OF GIVING ANY REPLY. IN FACT, ASSESSMENT HAS BEEN COMPLETED ON 28-12-200 7 ITSELF AND REASONS FOR ISSUING NOTICE U/S.158BD WERE GIVEN TO THE ASSESSEE ON 24- 12-2007, WHICH BECOMES CLEAR FROM PARA-4 OF THE ASS ESSMENT ORDER. THUS, THE RELEVANT MATERIAL WHICH WAS SEIZED FROM A THIRD PARTY WAS NEVER SUPPLIED AND IN THE ABSENCE OF THE SAME ASSES SEE COULD NOT HAVE POSSIBLY GIVEN ANY SUITABLE REPLY TO DEFEND HI MSELF. 3. THE LD. DR, ON THE OTHER HAND, STRONGLY SUPPORTE D THE ORDER OF THE AO AND CIT(A) AND HAS ALSO FILED WRITTEN SUBMIS SIONS IN WHICH IT IS MAINLY POINTED OUT THAT VIDE ORDER-SHEET ENTRY DATE D 24-12-2007, ASSESSEE WAS MADE AWARE THAT AN INFORMATION HAD BEE N RECEIVED FROM THE ITO OF SHRI JAYRAJ D. KAPADIA REGARDING RECEIPT OF CERTAIN MONEY WHICH HAS BEEN ASSESSED AS UNDISCLOSED INCOME, WHIC H MEANS ASSESSEE WAS AWARE OF THE ISSUES INVOLVED. IT(SS)A.25 OF 10 3 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSMENT HAD BEEN COMPLETED WITHOUT GIVING THE SE IZED MATERIAL, FOUND WITH THE THIRD PARTY WITH WHOM ASSESSEE IS NO T CONNECTED AT ALL. THE LD. CIT(A) HAS THOUGH RIGHTLY REJECTED THE ADJO URNMENT APPLICATION BECAUSE NO POWER OF ATTORNEY WAS FILED, BUT IN OUR OPINION, HE SHOULD HAVE ALLOWED SUFFICIENT OPPORTUNITY AND HAVE DECIDE D THE ISSUE AFTER CONSIDERING THE SEIZED MATERIAL. THEREFORE, IN THE INTERESTS OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER TO HIS FILE FOR RE-EXAMINATION OF THE ISSUE AFTER PROVIDING AN ADEQUATE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 4/9/2011. SD/- SD/- (D.MANMOHAN) (T.R.SOOD) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI: 14-9-2011. P/-*