NILESH C CHHEDA MUMBAI vs ITO WD 14(1)(3) MUMBAI

आयकर अपीऱीय अधिकरण, म ुंबई न्यायपीठ “फी” म ुंबई IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JM AND SHRI RAJESH KUMAR, AM आमकय अऩीर सं./I.T.A.

No.3246/Mum/2014 (ननधधारण वषा / Assessment Year : 2006-07) Mr.Nilesh C Chheda, Block No.

16A, 2nd floor Mahendra Mansion, 389/91 JSS Road, Chira Bazar, Mumbai-400002 बनधम/ Vs.

Income Tax Officer, Ward 14(1)(3), Mumbai-400020 स्थधयी ऱेखध सं./ PAN : AAAPC9344H अपीऱार्थी ओर से / Assessee by None प्रत्यर्थी की ओर से/Revenue by Shri Sanjeev Jain सुनवाई की तायीख / Date of Hearing : 30.5.2016 घोषणा की तायीख /Date of Pronouncement : 24.06.2016 आदेश / O R D E R PER RAJESH KUMAR, A.

M: This is an appeal filed by the assessee challenging the order of ld.CIT(A) dated 21.3.2014 for the assessment year 2006-07 by which the ld.CIT(A) has confirmed the penalty of Rs.52,83,000/- without giving proper opportunity of being heard to the assessee.

2.

None appeared on behalf of the assessee; despite notice of hearing sent to the assessee by RPAD.

Therefore, we decide this appeal ex-parte without the presence of assessee and after hearing the ld.DR.

2 ITA No.3246/Mum/2014 3.

We have heard the ld.DR and perused the material available before us.

On perusal of the record we find that the quantum addition on which impugned penalty has been imposed by the AO and confirmed by the ld.

CIT(A) has been set aside to the file of the ld.CIT(A) by the decision of the Co-ordinate Bench of Mumbai Tribunal in ITA No.I.T.A.3125/Mum/2010( AY:2006-07) order dated 10.9.2014.

4.

The ld.

DR, on the other hand, appears to be reasonably agreed to the factual aspects of the matter.

5.

On perusal of the Tribunal order passed in assessee’s own case in ITA 3125/Mum/2010 (AY:2006-07) (supra), we find that the issue of quantum addition has been set aside to the file of ld.CIT(A).

The relevant paragraph of the said order is reproduced below : “5.

We also heard Ld D.R on this issue. his issue.

We have already noticed that the Ld CIT(A) has expressly stated that he has decided the issues on the basis of materials available on record, meaning thereby, all the issues have been decided ex-parte.

Before us the assessee has explained the reasons for not appearing before Ld CIT(A) and he has also furnished additional evidences to support his stand in respect of various issues.

Though there is fault on the part of the assessee also in seeking adjournment every time, yet, in the interest of natural justice, we are of the view that the assessee may be provided one more opportunity to explain his stand.

Accordingly, we set aside the order of Ld CIT(A) and restore all the matters to his file with the direction to examine all the issues afresh after providing adequate opportunity to the assessee and then decide them in accordance with the law.

We also direct the assessee to extend full co- operation to the Ld CIT(A) without fail”.

3 ITA No.3246/Mum/2014 6.

In view of the above, the present appeal has no legs to stand.

Accordingly, we direct the AO to delete the penalty of Rs.52,83,000/-.

However, the AO is at liberty to initiate penalty proceedings if he across any material available before him in the set aside proceedings for levy of penalty u/s 271(1)(c) of the Act.

7.

In the result, the appeal of the assessee stands allowed.

Order pronounced in the open court on 24th June, 2016 Sd sd (MAHAVIR SINGH ) (RAJESH KUMAR) न्मायमक सदस्म / Judicial Member रेखा सदस्म / Accountant Member भुंफई Mumbai; ददनांक Dated :24.6.2016 Sr.PS:SRL: आदेश की प्रनिलऱपऩ अग्रेपषि/Copy of the Order forwarded to : 1. अऩीराथी / The Appellant 2. प्रत्मथी / The Respondent 3. आमकय आमुक्त(अऩीर) / The CIT(A) 4. आमकय आमुक्त / CIT – concerned 5. ववबागीम प्रयतयनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 6. गार्ड पाईर / Guard File True copy आदेशधनुसधर/ BY ORDER, [ उऩ/सहधयक ऩंजीकधर (Dy./Asstt.

Registrar) आयकर अऩीऱीय अधधकरण, भुंफई / ITAT, Mumbai