DEEPAK K MOTWANI,MUMBAI vs. DCIT - 12(3) (NOW ASSESSED WITH DCIT - 17(1)), MUMBAI

DCIT 13(3) Deepak K. Motwani (now assessed with 501, Tulsiani Chamber, free बिधम/ DCIT-17(1)) Press, Journal Marg, Vs. Aayakar Bhavan, M.K. Nariman Point, Mumbai-400021 Road, Mumbai-421301 स्थायीलेखासं./जीआइआरसं./ PAN/GIR No. AACPM8745N (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Prakash Jotwani, AR प्रत्यथीकीओरसे/Respondent by : Shri Chaitanya Anjariya, DR सुनवाईकीतारीख/ : 31/07/2018 Date of Hearing घोषणाकीतारीख / : 01.08.2018 Date of Pronouncement आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

1. The present Appeals filed by the assessee is against the order of Ld. Commissioner of Income Tax (Appeal) –28, Mumbai, dated 10.11.16 for AY 2008-09. Deepak K. Motwani 2. At the very outset, Ld. AR appearing on behalf of the assessee submitted that Ld. CIT(A) erred in law as well as on facts while dismissing appeal without granting proper opportunity of hearing. It was further submitted by Ld. AR that Ld. CIT(A) also erred in confirming the additions by not considering the written submission filed by the assessee. It was also submitted that his CA, Mr. Prasad Salaskar, attended the office of Ld. CIT(A) on 10.11.16 and on 11.11.16 had also filed the written submissions, but the Ld. CIT(A) by his order dated 10.11.16 dismissed the appeal and has not considered the submission filed by the assessee. In order to support its submissions, the assessee has filed the affidavit of his Charted Account namely Mr. Prasad Salaskar dated 01.08.18 and the same is reproduced below:-

AFFIDAVIT IN EVIDENCE I, Prasad Gangadhar Salaskar, age 46 having address at 101, Bajaj Bhavan, Nariman Point, Mumbai 400021 do hereby solemnly affirm and state as follows:-

Deepak K. Motwani dated 29-10-2010 for assessment year 2008-2009 the order of which passed on 10-Nov-2016. 2. I say that during the assessment proceedings, I had personally deposed before the Commissioner of Income-tax (Appeals).

10.1 say that in my absence, a request for the adjournments was made and the matter was adjourned to November 10, 2016. 11. I say that that the matter was attended on November 10, 2016 however I was very late for the hearing. I did try to approach the CIT(A) through his office and was denied entry. A request was made to accept the written submission which was denied again. I was informed to attend the office next day that is November 11, 2016 in the morning.

Deepak K. Motwani 12. I say that on November 11, 2016 the matter attended and was directed to make the submission in the tapal which was done however no hearing was granted to me.

Solemnly affirmed at Mumbai On this 31st day of July 2018 Prasad Gangadhar Salaskar [Deponent] 3. On the other hand, Ld. DR relied upon the orders passed by revenue authorities and submitted that the assessee had intentionally not appeared before Ld. CIT(A) and the orders passed by Ld. CIT(A) needs no interference.

4. We have heard the counsels for both the parties and we have also perused the material placed on record as well as orders passed by revenue authorities. From the records, we noticed that in the first round of litigation, Ld. CIT(A) dismissed the appeal as un-admitted on 30.11.11 since the appeal was not in accordance with rule 45(2) of I.T. Rules and on account of non- attendance. On further appeal to Hon’ble ITAT, the same was restored back vide order dated 17.09.13. We also noticed that as Deepak K. Motwani per the record, the appeal was again re-fixed for 11.08.14 and was adjourned at the request of the assessee. Thereafter, the appeal was again adjourned to several occasion and ultimately last opportunity was granted by Ld. CIT(A) for 10.11.16. But even inspite of that, none appear on behalf of the assessee, consequently, the appeal was dismissed ex-parte by considering the material placed on record. Now before us, although the assessee has made submissions to challenge the order of Ld. CIT(A) and in this respect, a detailed affidavit of the CA has also been filed. On the contrary, no affidavit has been filed by the revenue to rebut the contents contained in the said affidavit. After hearing the parties at length, although we are not convinced with the reasoning put forth by the assessee for non- appearance before Ld. CIT(A) as we are of the view that it is the bounded duty of the assessee or his representative to appear before the authorities on each and every date of hearing and to assist and cooperate the authorities for the early disposal of the case/appeal.

Deepak K. Motwani Be that as it may, considering the facts and circumstances of the present case and keeping in view the substantial cause of justice, we are of the considered view that the ends of justice would be met only, when we provide one more opportunity of hearing to the assessee for contesting the appeal on merits. In our view, if the assessee is allowed to represent his case before Ld. CIT(A) then in that eventuality, no prejudice would be caused to the interest of revenue as legitimate taxes due on the assessee’s correct income will be adjudicated. Whereas, if the contrary view is taken then in that eventuality the assessee may be put to great hardship and difficulty. Therefore, keeping in view the above discussion, we set aside the ex-parte order passed by Ld. CIT(A) and remit the matter back to the file of Ld. CIT(A) with a direction to provide one more opportunity to the assessee to represent his case and thereafter pass afresh order on all the grounds raised by the assessee. Assessee is also directed to appear before Ld. CIT(A) within 60 days from today and cooperate in early disposal of the appeal Before parting, we may make it clear that our decision to restore the matter back to the file of Ld. CIT(A) shall in no way Deepak K. Motwani be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the Ld. CIT(A) independently in accordance with law. Resultantly the grounds raised by the assessee are partly allowed.