RAJESH AMBALAL SHAH, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 3, KALYAN

MA 747/MUM/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8962 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: ATIN MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.747/M/2017 (ARISING OUT OF ITA NO.3626/M/2015) ASSESSMENT YEAR: 2010-11 MR. RAJESH AMBALAL SHAH, PROP M/S. JARS TRADING CO., A-504, SANSKARDI APARTMENT, LAL CHOWKY, AGRA ROAD, KALYAN (W)- 421 301 PAN: ANLPS 6347J VS. DEPUTY COMMISSIONER OF INCOME TAX-III, KALYAN, 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN (W) 421 301 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ATIN MEHTA, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 30.11.2018 DATE OF PRONOUNCEMENT : 19.12.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE SEEKS RECALLING OF THE ORDER DATED 21.06.2017 PASS ED IN ITA NO.3626/M/2015 ASSESSMENT YEAR: 2010-11. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT ON 13.06.2017 THE ASSESSEE HAS MOVED A REQUEST FOR GRA NT OF FURTHER TIME AS THE ASSESSEE HAS REQUESTED THE INCO ME TAX DEPARTMENT FOR CROSS EXAMINATION, HOWEVER, UPON PER USAL OF ORDER OF THE TRIBUNAL IT IS STATED IN PARA 2 AT PAG E 2 THAT NEITHER ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE APPEARED BEFORE THE MA NO.747/M/2017 (ARISING OUT OF ITA NO.3626/M/2015) MR. RAJESH AMBALAL SHAH, PROP M/S. JARS TRADING CO. 2 TRIBUNAL NOR ANY APPLICATION SEEKING ADJOURNMENT OF HEARING WAS RECEIVED DESPITE SERVICE OF NOTICE THROUGH RPAD ON PREVIOUS HEARING ON 04.05.2017. THE LD. A.R. SUBMITTED THAT SINCE THE ASSESSEE HAS FILED A COPY REQUESTING FOR FURTHER GR ANT OF TIME SO THAT THE CROSS EXAMINATION COULD BE SOUGHT FROM THE AO, THE PROOF WHEREOF IS ATTACHED AS EXHIBIT-2 FILED WITH T HE MA. THE LD. A.R. ALSO SUBMITTED THAT THE APPEAL OF THE ASSE SSEE HAS BEEN DISPOSED OF WITHOUT HEARING THE MATTER ON MERIT THE REBY CAUSING MISCARRIAGE OF NATURAL JUSTICE AND PRINCIPLES OF EQ UITY. THE LD. A.R. FURTHER SUBMITTED THAT IN THE EARLIER AND SUCC EEDING YEARS THE CASE OF THE ASSESSEE UNDER SIMILAR SET OF FACTS HAS BEEN RESTORED TO THE FILE OF THE AO, COPIES WHEREOF WE RE FILED BEFORE THE BENCH. THE LD. A.R. SUBMITTED THAT THE ASSESSE E HAS A VERY GOOD CASE ON MERIT AS THE PURCHASES FROM THE ALLEGE D SUPPLIERS STAND CONFIRMED BY FILING CONFIRMATIONS FROM THE SU PPLIERS IN RESPONSE TO NOTICES ISSUED UNDER SECTION 133(6) OF THE ACT BESIDES FILING THE AFFIDAVIT OF THE SUPPLIERS. THE REFORE THE PURCHASES OF THE ASSESSEE ARE TOTALLY GENUINE AND N OT BOGUS. THE LD. A.R. PRAYED THAT IN LINE WITH THE EARLIER A ND SUCCEEDING YEARS ORDERS PASSED IN ITA NO.2320/M/2017 A.Y. 2009 -10 AND 2321/M/2017 A.Y. 2011-12 ,THE ISSUE BE RESTORED TO THE FILE OF THE AO TO DECIDE THE SAME IN ACCORDANCE WITH THE DE CISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL. 3. THE LD. D.R., ON THE OTHER HAND, PRAYED THAT THE MA BE DISMISSED AS THE ASSESSEE FAILED TO APPEAR ON THE D ESIGNATED HEARING. MA NO.747/M/2017 (ARISING OUT OF ITA NO.3626/M/2015) MR. RAJESH AMBALAL SHAH, PROP M/S. JARS TRADING CO. 3 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE CASE OF THE ASSESSEE WAS H EARD EX-PARTE DESPITE THE APPLICATION OF THE ASSESSEE FOR GRANT O F TIME DATED 13.06.2017 COPY OF WHICH IS FILED AS EXHIBIT 1. WE FURTHER FIND THAT THE CASE OF THE ASSESSEE WAS DISPOSED AS EX-PA RTE WITHOUT HEARING ON MERIT. THE PERUSAL OF FACTS ON RECORD R EVEALS THAT THE ASSESSEE HAS FILED THE NECESSARY CONFIRMATION BILLS , VOUCHERS AND OTHER EVIDENCES QUA THE PURCHASES MADE FROM SUP PLIERS. BESIDES THE SUPPLIERS HAVE ALSO DULY RESPONDED AND FILED THE AFFIDAVITS IN RESPONSE TO NOTICES ISSUED UNDER SECT ION 133(6) OF THE ACT. FURTHER, UNDER THE SIMILAR SET OF FACTS T HE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.2320/M/2017 A.Y. 20 09-10 AND OTHERS VIDE ORDER DATED 11.10.2017 RESTORED THE ISS UE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER AFFORDING THE REASONABLE OPPORTUNITY OF BEING HEARD. AFTER PERUS ING THE SAID ORDER, WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE TRIBUNAL NEEDS TO BE RECALLED AS THE SAME IS PASSED EX-PARTE WITHOUT HEARING THE ASSESSEE ON MERIT. ACCORDINGLY, WE REC ALL OUR ORDER DATED 21.06.2017 AND RESTORE THE SAME TO THE FILE O F THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.2320/M/201 7 A.Y. 2009-10 AND 2321/M/2017 A.Y. 2011-12 ORDER DATED 11.10.2017. ACCORDINGLY, THE MA OF THE ASSESSEE IS ALLOWED. BESIDES THE ORDER OF THE TRIBUNAL DATED 21.06.2017 STANDS AMENDED TO THE EXTENT THAT THE SAME IS RESTORED TO THE FILE OF THE AO TO DECIDE THE ISSUE IN ACCORDANCE WITH THE FACTS AND LAW AND AFTER FOLLOWING THE ORDER OF TRIBUNAL FOR AY 2009-1 0. MA NO.747/M/2017 (ARISING OUT OF ITA NO.3626/M/2015) MR. RAJESH AMBALAL SHAH, PROP M/S. JARS TRADING CO. 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED AND APPEAL IS ALLOWED AS STATED HEREINABOVE FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.12.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19.12.2018. * 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.