VIVEK P. TALWAR, MUMBAI V. DCIT CEN CIF-34, MUMBAI

ITSSA 4/MUM/2009

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2277 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 5 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-11-2015
• Assessment Year: misc
• Appeal Filed On: 16-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SENT H IL KUMARAN
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER IT(SS)A NO.04/M/2009 ASSESSMENT YEAR: 01.04.1987 TO 05.08.1997 SHRI VIVEK P. TALWAR, C/O. M/S. NITCO TILES LTD., RECONDO COMPOUND, INSIDE MUNICIPAL ASPATAL, S.K. AHIRE MARG, WORLI, MUMBAI 400 030 PAN: AAAPT3994Q VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 34, MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI VIMAL PUNMIYA, A.R. REVENUE BY : SHRI S. SENTHIL KUMARAN, D.R. DATE OF HEARING : 09.06.2016 DATE OF PRONOUNCEMENT : 29.06.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 18.10.2006 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)]. 2. THE ASSESSEE, THROUGH ITS GROUNDS OF APPEAL, HAS AGITATED THE CONFIRMATION OF THE LEVY OF PENALTY BY THE ASSESSIN G OFFICER (HEREINAFTER REFERRED TO AS THE AO) UNDER SECTION 158BFA(2) OF T HE INCOME TAX ACT AMOUNTING TO RS.4,15,636/- AND FURTHER ENHANCING TH E SAME TO RS.95,637/-. 3. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ASSESSEE HAS A FAIR CASE TO CONTEST THE LEVY/ENHANCEMENT OF THE PENALTY BY THE LOWER AUTHORITIES. HOWEVER, THE LD. CIT(A) HAS NOT GIVEN THE ASSESSEE A FAIR OPPORTUNITY TO REPRESENT HIS CASE AND CONTEST THE S AID LEVY/ENHANCEMENT OF IT(SS)A NO.04/M/2009 SHRI VIVEK P. TALWAR 2 PENALTY UNDER SECTION 158BFA(2) OF THE ACT. THE LD . A.R. HAS SUBMITTED THAT THE NOTICE FOR HEARING OF THE CASE FOR 08.12.08 WAS SERVED ON THE ASSESSEE IN THE EVENING OF 06.12.08 ONLY, PARTICULARLY WHEN 07.12.0 8 WAS HOLIDAY ON ACCOUNT OF SUNDAY AND 09.12.08 WAS HOLIDAY ON ACCOUNT OF BA KRI-ID. DUE TO THE ABOVE CIRCUMSTANCES, THE A.R. OF THE ASSESSEE INFORMED TH E LD. CIT(A) ON THE NEXT DATE I.E. ON 10.12.08 THAT THE ASSESSEE WAS NOT IN A POSITION TO PRESENT HIS CASE ON THE DATE FIXED I.E. 08.12.08. HOWEVER, THE LD. CIT(A) WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE ENHANCED THE PENALTY. THE LD. A.R. HAS SUBMITTED THAT THE OPPORTUNITY OF BEING HEARD DOES NOT MEAN ONLY THE ISSUANCE OF NOTICE. THE LD. CIT(A) WAS SUPPOSED TO GIVE A F AIR OPPORTUNITY TO THE ASSESSEE TO ENABLE HIM TO PUT HIS CASE BEFORE HIM B Y GIVING ADVANCE NOTICE FOR A REASONABLE TIME. HE, THEREFORE, HAS STATED THAT THE PRINCIPLES OF NATURAL JUSTICE HAVE BEEN VIOLATED BY THE LD. CIT(A) WHILE IMPOSING/ENHANCING THE PENALTY IN QUESTION. THE LD. D.R., ON THE OTHER HAND, HAS RELIED UPON T HE FINDINGS OF THE LD. CIT(A). 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. THE LD. A.R. OF THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE PARA 7 OF THE IMPUGNED ORDER OF THE LD. CIT(A) WHEREIN IT HAS BEEN MENTIONED THAT A NOTICE FIXING THE CASE FOR HEARING ON 08.12.08 HAS REMAINED UNATTENDED. 5. CONSIDERING THE ABOVE SUBMISSIONS OF THE LD. A.R ., WE ARE OF THE VIEW THAT A FAIR AND REASONABLE OPPORTUNITY OF BEING HEA RD WAS REQUIRED TO BE GRANTED TO THE LD. CIT(A) TO THE ASSESSEE BEFORE CO NFIRMING/ENHANCING THE IMPUGNED PENALTY. WE, THEREFORE, SET ASIDE THE IMP UGNED ORDER AND RESTORE THE MATTER BACK TO THE LD. CIT(A) TO DECIDE THE LEVY/EN HANCEMENT OF PENALTY AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO TH E ASSESSEE TO PRESENT HIS CASE. NEEDLESS TO SAY THAT THE LD. A.R. WILL GIVE AT LEAS T 1 MONTHS NOTICE TO THE ASSESSEE FIXING THE DATE OF HEARING OF THE MATTER A ND WILL DULY TAKE INTO IT(SS)A NO.04/M/2009 SHRI VIVEK P. TALWAR 3 CONSIDERATION THE EVIDENCES/DOCUMENTS AND SUBMISSIO NS MADE BY THE ASSESSEE BEFORE HIM IN SUPPORT OF HIS CASE. 6. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE A SSESSEE IS HEREBY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.06.2016. SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.06.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.