IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES " C ", MUMBAI
BEFORE SHRI DINESH KUMAR AGARWAL, JM
AND SHRI RAJENDRA, A.M.
ITA No. : 7956/Mum/2010
Assessment Year : 2002-03
M/s Ompowertech Associates & ITO Wd. 7(1)-2,
Contractors Pvt. Ltd., Aayakar Bhavan,
302, Vardhan Apartment, Mumbai 400 020.
Nanda Patkar Road,
Vs.
Vile Parle (E),
Mumbai 400057.
PAN NO: AAACO 3051 C
(Appellant) (Respondent)
Appellant by : None
Respondent by : Shri D.S. Sunder Singh
Date of hearing : 12-6-2012
Date of Pronouncement : 12-6-2012
ORDER
PER DINESH KUMAR AGARWAL, JM :
This appeal preferred by the assessee is directed against the
order dated 28-7-2010 passed by the ld. CIT(A)- 13, Mumbai for the
assessment year 2002-03.
2. In this case, the appeal was fixed for hearing on 4-6-2012. On
4-6-2012, a short adjournment was sought by the assessee on the
ground that the appeal is under preparation and the counsel is busy.
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ITA No : 7956/Mum/2010
Accordingly the case was adjourned to 12-6-2012. On 12-6-2012,
again adjournment was sought on the ground that the counsel for the
assessee is out of station. Since the adjournment was already granted
at the request of the assessee and in the absence of any power of
attorney, the Bench rejected the adjournment application filed by the
assessee and it was decided to dispose of the appeal ex parte qua the
assessee on merits after hearing the ld. D.R.
3. Briefly stated facts of the case are that the assessee company is a
contractor. The return was filed declaring total income of Rs. 32,620/-.
However, the assessment was completed at an income of Rs.
53,93,490/- vide order dtd. 28-3-2005 passed u/s 143(3) of the Income
Tax Act, 1961 (the Act). On appeal, the ld. CIT(A) provided various
opportunities to the assessee. However, in the absence of any
compliance by the assessee, the ld. CIT(A) after considering the remand
report submitted by the A.O. while observing that the assessee has not
paid self assessment tax of Rs. 11,645/- as per return of income filed
by it and in the absence of books of accounts, vide his ex parte order
held that the A.O. was justified in estimating the profit and making the
disallowance/addition and accordingly dismissed the appeal.
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ITA No : 7956/Mum/2010
4. Being aggrieved by the order of the ld. CIT(A), the assessee is in
appeal before us challenging in all the grounds the sustenance of
addition/disallowance made by the A.O.
5. At the time of hearing the ld. D.R. while relying on the order of
A.O. and the ld. CIT(A) submits that he has no objection if the appeal is
restored back to the file of the ld. CIT(A).
6. We have carefully considered the submissions of the ld. D.R. and
perused the material available on record. We find that in this case,
inspite of various opportunities provided to the assessee, the ld. CIT(A)
has dismissed the assessee's appeal on the ground that the assessee
has not paid self assessment tax of Rs. 11,645/- and has not produced
the books of accounts. In the absence of any material to show that the
assessee was asked to produce the books of accounts and keeping in
view that the assessee in the Memorandum of Appeal i.e. (Form No. 35)
filed before the ld. CIT(A) mentioned that the admitted tax of Rs.
11,645/- has duly been deposited, we are of the view that the ld. CIT(A)
was not justified in dismissing the assessee's appeal without providing
specific opportunity of being heard to the assessee. This being so and
keeping in view the interests of justice, we consider it fair and
reasonable that the matter should go back to the file of the ld. CIT(A)
and accordingly we set aside the order passed by the ld. CIT(A) and
send back the matter to his file to decide the same afresh and
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ITA No : 7956/Mum/2010
according to law after providing sufficient opportunity of being heard to
the assessee. All the grounds taken by the assessee are, therefore,
partly allowed for statistical purpose.
4. In the result, the assessee's appeal stands partly allowed for
statistical purpose.
Order pronounced in the open court on 12th day of June, 2012.
sd
Sd/-
( RAJENDRA ) ( DINESH KUMAR AGARWAL )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dt: 12.06.2012.
Copy forwarded to :
1. The Appellant,
2. The Respondent,
3. The C.I.T. 7, Mumbai
4. CIT (A) 13, Mumbai.
5. The DR, - Bench, ITAT, Mumbai
//True Copy//
BY ORDER
ASSISTANT REGISTRAR
ITAT, Mumbai Benches, Mumbai
RK
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