DAHANU AGENCIES (P) LTD, MUMBAI V. ITO 9(1)(3), MUMBAI

ITA 1110/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71742 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIM KUMAR MODI
• Keywords: Fair market value
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , ./I.T.A. NO.1110/MUM/2012 ( / ASSESSMENT YEAR : 2005-06) M/S DAHANU AGENCIES (P) LTD MOHANLAL JAIN AND CO. C/O CHARTERED ACCOUNTANTS 10, CHARTERED HOUSE, GROUND FLOOR, DR.C.H.STREEET, MARINE LINES, MUMBAI-400002. / VS. INCOME TAX OFFI CER, 9(1)(3), MUMBAI. ( ( / APPELLANT) .. ( ) ( / RESPONDENT) ./ ./PAN/GIR NO. : AAACD9655M ( /: APPELLANT BY SHRI VIJAY C KOTHARI ) ( , / RESPONDENT BY SHRI ASHIM KUMAR MODI , / / DATE OF HEARING : 18.11.2013 , / /DATE OF PRONOUNCEMENT : 22.11.2013 / O R D E R PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2005-06 AGAINST EX-PARTE ORDER OF LD. CIT(A) DATED 25.11.2011. 2. THE APPEAL FILED BY ASSESSEE IS BARRED BY LIMITA TION OF TWO DAYS. 3. CONSIDERING THE SUBMISSIONS OF LD. REPRESENTATIV ES OF THE PARTIES, DELAY OF TWO DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL IS C ONDONED. 4. THIS APPEAL HAS ARISEN OUT OF ASSESSMENT ORDER M ADE U/S 144 R.W.S.147 OF THE INCOME TAX ACT, 1961 (THE ACT). THE LD. CIT(A) HAS ALSO PASSED EX-PARTE ORDER CONFIRMING THE ORDER OF ASSESSING OFFICER. 5. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THA T THE BUSINESS ACTIVITY OF ASSESSEE-COMPANY IN THE RELEVANT ASSESSMENT YEAR H AD COME TO STAND STILL AND THE DIRECTORS OF THE COMPANY SHIFTED TO HAZARIBAGH AND OFFICE PREMISES AT MUMBAI OF THE ASSESSEE WAS CLOSED. NOTICES SENT TO THE ASSESSEE ON ITS OFFICE AT MUMBAI WERE NOT SERVED. HENCE, THE ASSESSEE COULD NOT PUT APPEARA NCE BEFORE AO AS WELL AS BEFORE LD. I.T.A. NO.1110/MUM/2012 2 CIT(A). LD. REPRESENTATIVE OF THE ASSESSEE HAS ALSO FILED A LETTER STATING THE ABOVE FACTS. IT IS SUBMITTED THAT THE NON-COMPLIANCE WAS INADVER TENT AND WITHOUT MALAFIDE INTENTION OR PURPOSE. AT THE TIME OF HEARING, THE PRAYER WAS MADE TO GRANT AN OPPORTUNITY TO THE ASSESSEE TO FURNISH REQUISITE DETAILS AND EXPLANATI ON SO THAT THE ASSESSMENT COULD BE MADE BASED THEREON. LD. AR, AT THE TIME OF HEARING , SUBMITTED THAT IF THE MATTER IS RESTORED TO THE AO, THE ASSESSEE WILL CO-OPERATE AND FURNISH SUCH REQUISITE DETAILS AS MAY BE REQUIRED. THE LD. DR SUBMITTED THAT THE MAT ER COULD BE RESTORED TO LD. CIT(A) AND THE LD. CIT(A) COULD OBTAIN REMAND REPORT, IF N ECESSARY. THE LD. AR SUBMITTED THAT THE BASIC ADDITION IS MADE ON ACCOUNT OF SALE OF IM MOVABLE PROPERTY AND THE AO HAS ADOPTED THE VALUE AS PER STAMP VALUATION AUTHORITY . THEREFORE, THE MATTER HAS TO BE REFERRED TO DISTRICT VALUATION OFFICER(DVO) TO ASC ERTAIN FAIR MARKET VALUE OF THE PROPERTY TO COMPUTE THE LONG TERM CAPITAL GAIN. HE SUBMIT TED THAT THE MATTER MAY BE RESTORED TO THE AO SO THAT THE AO COULD PASS AFRES H ASSESSMENT ORDER ON THE BASIS OF DETAILS THAT THE ASSESSEE WILL UNDERTAKE TO FILE BE FORE AO. 6. CONSIDERING THE FACTS OF THE CASE AND THE SUBMIS SIONS OF LD. REPRESENTATIVES OF THE PARTIES, WE, IN THE INTEREST OF JUSTICE, SET AS IDE THE IMPUGNED ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE AO TO MAKE AFRE SH ASSESSMENT AS PER LAW AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND CONSIDERING THE SUCH EVIDENCES AS MAY BE PLACED BEFORE HIM. WE MAY STATE THAT IF THE ASSESSEE FAILS TO FURNISH THE REQUISITE DETAILS TO THE AO AS MAY BE REQUIRED BY HIM AND /OR THE ASSESSEE FAILS TO CO- OPERATE WITH THE AO TO ENABLE HIM TO MAKE ASSESSME NT, AO WILL BE AT LIBERTY TO COMPLETE ASSESSMENT PROCEEDINGS ON THE BASIS OF MA TERIAL AVAILABLE BEFORE HIM. IN VIEW OF ABOVE, WE SET ASIDE THE ORDERS OF AUTHORITI ES BELOW AND RESTORE THE MATTER TO THE AO TO MAKE AFRESH ASSESSMENT AS PER LAW BY A SPEAKING ORDER AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. HENCE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 22 ND NOVEMBER, 2013 , 2 3 22 ND NOVEMBER, 2013 , SD SD ( / SANJAY ARORA) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS 22 ND DAY OF NOVEMBER, 2013 I.T.A. NO.1110/MUM/2012 3 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. ( / THE APPELLANT 2. ) ( / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- CONCERNED 4. 7 / CIT CONCERNED 5. 8 ): , / : , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) / : , /ITAT, MUMBAI