MANGALSINGH BROTHERS P.LTD, MUMBAI V. ITO (TDS) 2(3), MUMBAI

ITA 1242/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2164 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C KANOJIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 201(1); 10

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , J UDICIAL M EMBER AND SHRI M. K. AGRAWAL , A CCOUNTANT M EMBER ./ I.T.A. NO. 1242 /MUM/2 0 1 5 ( / ASSESSMENT YEAR S : 20 0 9 - 10 ) M/S MANGALSINGH BROTHERS PRIVATE LIMITED, MARWADI VIDHYALAYA BLDG, 473 - SVP ROAD, MUMBAI - 400004 / VS. INCOME TAX OFFICER (TDS) 2( 3 ), MUMBAI. ./ PAN : AACCM1015C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI K C KANOJIA / DATE OF HEARING : 2 7.10 .2016 / DATE OF PRONOUNCEMENT : 28 .10.20 16 / O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 13/01/ 2015 OF LD. CIT(APPEALS) MUMBAI 59 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - 1. THE LD. CIT(A ) HAS DENIED THE APPELLANT OPPORTUNITY TO BE HEARD AND ORDER PASSED IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE; 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF AO WITHOUT GOING INTO MERITS AND GROUNDS RAISED BEFORE US ITA NO. 1242 /M/2015 2 3. BRIEFLY THE FACTS ARE, THE ASSESSING OFFICER ON RECEIVING INFORMATION THAT ASSESSEE HAS CLAIMED EXPENSES TO THE TUNE OF RS. 31, 61, 174 WITHOUT DEDUCTING TAX AT SOURCE AT THE TIME OF MAKING SUCH PAYMENT CALLED UPON THE ASSESSEE TO FURNISH THE NATURE AND BREAKUP OF THE EXPENSES CLAIMED AND ALSO TO SHOW CAUSE WHY ORDER UNDER SECTION 201 (1)/201 (1A) OF THE ACT SHOULD NOT BE PASSED BY TREATING THE ASSESSEE AS AN ASSESSEE IN DEFAULT. IN REPLY TO THE AFORESAID SHOW CAUSE NOTICE, THE ASSESSEE BY LETTER DATED 02.02. 2011 FURNISHED THE COPIES OF THE TDS CHALLANS AGAINST THE PAYMENT OF RS. 31, 61, 174. HOWEVER, THE ASSESSING OFFICER AFTER VERIFYING THE DETAILS FOUND THAT ASSESSEE HAS NOT FURNISHED PROOF OF PAYMENT OF TDS OF RS. 2, 45, 367. HE THEREFORE, PASSED AN ORDER RAISING TAX DEMAND OF RS. 2, 45, 367 UNDER SECTION 201(1) AND INTEREST OF RS. 58, 888 UNDER SECTION 201 (1A). BEING AGGRIEVED OF THE AFORESAID ORDER THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED NET CIT( APPEALS). THE FIRST APPELLATE AUTHORITY DISPOSED OFF THE APPEAL FIL ED BY THE ASSESSEE EX PARTE BY CONFIRMING THE ORDER OF THE ASSESSING OFFICER. BEING AGGRIEVED ASSESSEE IS BEFORE US. 4. WHEN THE APPEAL WAS CALLED FOR HEARING NO ONE WAS PRESENT FOR THE ASSESSEE. HOWEVER, LETTER DATED 20/10/2016 FROM A CA FIRM REQUESTING FOR ONE MONTHS ADJOURNMENT WAS FILED IN THE REGISTRY. CONSIDERING THE NATURE OF DISPUTE AND THE GRIEVANCE OF THE ASSESSEE WE ARE NOT INCLINED TO ADJOURN THE APPEAL. HENCE, WE REJECT THE REQUEST FOR ADJOURNMENT AND ITA NO. 1242 /M/2015 3 PROCEED TO DISPOSE OFF THE APPEAL EX PART E, QUA THE ASSESSEE, AFTER HEARING LD.DR AND ON THE BASIS OF MATERIAL ON RECORD. 5. AS COULD BE SEEN, THE APPEAL FILED BY THE ASSESSEE BEFORE CIT( APPEALS) WAS DISPOSED OF EX PARTE. THE SPECIFIC GRIEVANCE OF THE ASSESSEE AS RAISED IN GROUND NUMBER ONE IS , THE ORDER PASSED BY THE CIT( APPEALS) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. ON A PERUSAL OF THE IMPUGNED ORDER OF LD. CIT( APPEALS) IT APPEARS, THOUGH, ON THE DATE FIXED FOR HEARING OF APPEAL AN APPLICATION FOR ADJOURNMENT WAS FILED THE SAME WAS R EJECTED BY THE FIRST APPELLATE AUTHORITY ON THE GROUND THAT THE AUTHORISED REPRESENTATIVE WHO FILED THE LETTER OF ADJOURNMENT DIDNT HAVE A VALID POWER OF ATTORNEY. IT APPEARS, THE LD. CIT( APPEAL) WITHOUT AFFORDING ANY FURTHER OPPORTUNITY TO THE ASSESSEE PROCEEDED TO DISPOSE OFF THE APPEAL EX PARTE. WE HAVE ALSO NOTED THAT WHILE SUSTAINING THE ORDER OF THE ASSESSING OFFICER LD. CIT( APPEAL) HAS PASSED A NONSPEAKING ORDER. CONSIDERING THE AFORESAID ASPECTS, WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES A FAIR OPPORTUNITY OF BEING HEARD BEFORE THE CIT( APPEALS) SINCE, THE IMPUGNED ORDER OF THE CIT( APPEALS) IS IN VIOLATION OF RULES OF NATURAL JUSTICE. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF LD. CIT( APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE F OR FRESH ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO. 1242 /M/2015 4 6. IN THE RESULT ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH OCTOBER ,2016. 28TH OCTOBER , 2016 SD SD ( M. K. AGRAWAL) (SAKTIJIT DEY) A CCOUNTANT M EMBER J UDICIAL M EMBER MUMBAI ; DATED 28TH 10/ 2016 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI