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Income Tax Appellate Tribunal - Mumbai

Jay Builders, Mumbai vs Acit 25(2), Mumbai on 14 November, 2018

            IN THE INCOME TAX APPELLATE TRIBUNAL,
                   MUMBAI BENCH "F", MUMBAI

     BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND
           SHRI AMARJEET SINGH, JUDICIAL MEMBER

                       ITA No.2018/M/2017
                     Assessment Year: 2012-13

       M/s. Jay Builders,       ACIT 25(2),
       B-4, Kamdar Shopping     Mumbai - 400021
       Centre,
                            Vs.
       Tejoal Rd.,
       Vile Parle (E),
       Mumbai - 400 057
       PAN: AAEFJ7601C
             (Appellant)          (Respondent)

     Present for:
     Assessee by           : Shri Devendra Jain, A.R.
     Revenue by            : Shri Rajeev Gubegotra, D.R.

     Date of Hearing       : 04.10.2018
     Date of Pronouncement : 14.11.2018

                            ORDER


Per Rajesh Kumar, Accountant Member:

The present appeal has been preferred by the assessee against the order dated 05.05.2015 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2012-13.

2. The issue raised in first ground of appeal is against the ex- parte order passed by Ld. CIT(A) in violation of principle of natural justice without hearing the assessee. The Ld. A.R., at the outset, pointed out that the order of Ld. CIT(A) was passed ex-parte without affording a reasonable opportunity to the assessee of being heard, though candidly admitting that the assessee was granted four opportunities by Ld. CIT(A) but the 2 ITA No.2018/M/2017 M/s. Jay Builders Ld. Counsel did not appear and kept filing the adjournment letters on every date of hearing. The Ld. A.R. submitted that by passing the ex-parte order the assessee has been deprived of his legitimate and legal right of being heard by the Ld. CIT(A) on merits and therefore the matter should be restored back to the file of the Ld. CIT(A) for passing a fresh order after affording a reasonable to the assessee to present its case. The Ld. A.R. in defence of his arguments relied on the various decisions of the Hon'ble Supreme Court.

3. The Ld. D.R., on the other hand, strongly opposed to the restoration of the appeal on the ground that assessee was afforded opportunities of hearing four times but neither assessee nor any representative was present but chose to file the adjournment petitions every time.

4. After hearing both the parties and perusing the material on record, we observe that the appeal is decided ex-parte by the Ld. CIT(A). The right to be heard is a basic right of the assessee in any of the appeal filed by the assessee against the order of lower authorities challenging the injustice perpetrated the lower authorities. Merely because the counsel of the assessee defaulted in appearing before the appellate authority should not deprive the assessee from his primary right which is given in the form of principle of natural justice. Accordingly, we restore the issue back to the file of Ld. CIT(A) to decide the same afresh after affording a reasonable opportunity as per facts and law.

M/s. Jay Builders

5. Since we have restored the issue to the file of Ld. CIT(A) the other issue raised by the assessee on merits need no adjudication at this stage.

6. In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court on 14.11.2018.

         Sd/-                                            Sd/-
   (Amarjeet Singh)                                (Rajesh Kumar)
  JUDICIAL MEMBER                               ACCOUNTANT MEMBER

Mumbai, Dated: 14.11.2018.
* 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 Order



                                   Dy/Asstt. Registrar, ITAT, Mumbai.