Sushila S. Poojari v. The Income Tax Appellate Tribunal & Ors

mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1661 of 2009 Sushila S. Poojari ...Petitioners Vs. The Income Tax Appellate Tribunal & Ors. ...Respondents Dr. P. Daniel with Mr. A.R. Singh and Paras Savla for the Petitioners.Mr. P.S. Sahadevan, for the Respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 5TH OCTOBER, 2009 P.C. Rule. Heard forthwith. 2.In view of the order to be passed, we do not propose to pass a detailed order . 3.The learned Counsel for the petitioner points out that the Tribunal in its order dated 22[nd] December, 2008 proceeded on the footing that some admissions had been made on behalf of the petitioner by their representative that some amounts had been utilised for investments in the name of six shops in the name of Shankar Poojari HUF in Juhu Prince Building located at Juhu Tara Road, Mumbai. Against that order the petitioner herein preferred a Miscellaneous Application and along with it filed an affidavit of the Chartered Accountant Shri Ramgopal Sharma who had appeared denying the statement attributed to the A.R. had not been made by him. That Misc. Application was dismissed without considering the affidavit filed by Shri Ramgopal Sharma. Learned Counsel also points out that the learned Tribunal did not consider the fact that the HUF in respect of the assessment year 2000-2001 had already filed its returns which had been accepted under Section 143(1) of the Income Tax Act. Various other contentions have been raised. It is also pointed out that there was a block assessment in respect of the very same assessee HUF for the same period. 4.On behalf of the Respondents written submissions have been filed contending that alternative remedy is available to the petitioner herein. 5.In our opinion considering the judgment of the Supreme Court in Honda SIEL Power Products Ltd. vs. Commissioner of Income-Tax, (2007) 295 ITR 466 (SC) serious prejudice has been occasioned to the petitioner herein by non-consideration of the affidavit filed by Shri R. Sharma, C.A. In his affidavit it was set out that the purported admission was not made by him. There is also other documentary evidence on record which had to be considered, which has not been considered. 6.Considering these circumstances, the ends of justice would be met if the impugned order dated 22[nd] December, 2008 and subsequent order dated 23[rd] June, 2009 are set aside and the matter is restored to file of the learned Tribunal to hear the parties de novo according to law. 7.Rule made absolute accordingly. There shall be no order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)