THYROCARE BIOTECH P.LTD, NAVI MUMBAI V. DCIT 15(3)(1), MUMBAI

ITA 1318/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5719 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , ACCOUNTANT MEMBER ITA NO. 1318/MUM./2017 ( ASSESSMENT YEAR : 20 13 14 ) M/S. THYROCARE BIOTECH PVT. LTD. D 37/3, TTC INDUSTRIAL AREA MIDC, TURBHE, NAVI MUMBAI 400 703 PAN AABCT2582L . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE 15(3)(1), MUMBAI . RESPONDENT ASSESSEE BY : MS. DINKLE HARIYA REVENUE BY : SHRI V. JUSTIN DATE OF HEARING 05 .0 7 .2018 DATE OF ORDER 11.07.2018 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE ASSESSEE IS AGAINST ORDER DATED 8 TH DECEMBER 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 24 , MUMBAI, FOR THE ASSESSMENT YEAR 2013 14. 2 . THE DISPUTE IN THE PRESENT APPEAL IS CONFINED TO DISALLOWANCE OF EXPENSES AMOUNTING TO ` 8,44,710. 3 . THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 27 TH SEPTEMBER 2013, DECLARING LOSS OF 2 M/S. THYROCARE BIOTECH PVT. LTD. ` 47,01,630. DURING THE ASSESSMEN T PROCEEDINGS, THE ASSESSING OFFICER FOR VERIFYING THE EXPENDITURE DEBITED TO THE PROFIT & LOSS ACCOUNT CALLED UPON THE ASSESSEE TO FURNISH NECESSARY DETAILS. AFTER EXAMINING THE DETAILS FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER HELD THAT EXPENDITUR E TO THE TUNE OF ` 8,44,710, ON ACCOUNT OF DEPRECIATION AND INTEREST CANNOT BE ALLOWED AS THE ASSESSEE WAS IN THE PROCESS OF SETTING UP OF ITS BUSINESS. BEING AGGRIEVED OF SUCH DISALLOWANCE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4 . A S IT APPEARS FROM RECORD , DUE TO NON APPEARANCE OF THE ASSESSEE ON THE DATE FIXED FOR HEARING, LEARNED COMMISSIONER (APPEALS) DISPOSED OFF THE APPEAL EX PARTE BY DISMISSING IT IN LIMINE. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5 . T HE LEARNED AUTHORISED RE PRESENTATIVE BY FURNISHING A SWO RN AFFIDAVIT OF A DIRECTOR OF THE COMPANY SUBMITTED THAT THE NON APPEARANCE BEFORE THE LEARNED COMMISSIONER (APPEALS) WAS DUE TO THE FACT THAT HEARING NOTICES WERE SERVED AT THE OLD ADDRESS, HENCE, ASSESSEE WAS NOT AWARE OF THE DATE OF HEARING. SHE SUBMITTED , THE NON APPEARANCE BEFORE THE FIRST APPELLATE AUTHORITY WAS NEITHER DELIBERATE NOR WILLFUL . THEREFORE, SHE SUBMITTED , ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE FIRS T APPELLATE AUTHORITY. 3 M/S. THYROCARE BIOTECH PVT. LTD. 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION IN RESTORING THE MATTER TO THE LEARNED COMMISSIONER (APPEALS) FOR FRESH HEARING. 7 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. UNDISPUTEDLY, THE LEARN ED COMMISSIONER (APPEALS) HAS DISPOSED OFF ASSESSEES APPEAL EX PARTE DUE TO NON APPEARANCE . IT HAS BEEN EXPLAINED BEFORE US BY THE LEARNED AUTHORISED REPRESENTATIVE THAT DUE TO CHANGE OF ADDRESS THE NOTICES WERE NOT RECEIVED BY THE ASSESSEE. HENCE, IT COU LD NOT APPEAR BEFORE THE LEARNED COMMISSIONER (APPEALS). FURTHER, IT IS NOTICED , LEARNED COMMISSIONER (APPEALS) WHILE DISPOSING OF ASSESSEES APPEAL EX PARTE HAS DISMISSED IT IN LIMINE WITHOUT DECIDING ON MERIT. THIS, IN OUR VIEW, IS NOT COR R ECT AS THE LEA RNED COMMISSIONER (APPEALS) IS DUTY BOUND TO DECIDE THE APPEAL ON MERIT EVEN IN THE ABSENCE OF THE ASSESSEE. BE THAT AS IT MAY, CONSIDERING THE REQUEST OF THE LEARNED AUTHORISED REPRESENTATIVE FOR ONE MORE OPPORTUNITY TO BE GIVEN TO THE ASSESSEE TO REPRESE NT ITS CASE BEFORE THE FIRST APPELLATE AUTHORITY , WE ARE INCLINED TO RESTORE THE ISSUE TO THE LEARNED COMMISSIONER (APPEALS) FOR FRESH ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AT THE SAME TIME, WE MUST OBSERVE, ASSESSEE ON ITS PAR T SHOULD BE MORE CAREFUL AND DILIGENT IN PURSUING ITS APPEAL. THEREFORE , WE DIRECT THE ASSESSEE TO FURNISH BEFORE THE LEARNED COMMISSIONER 4 M/S. THYROCARE BIOTECH PVT. LTD. (APPEALS) THE PRESENT ADDRESS FOR COMMUNICATION OF HEARING NOTICE AND MUST RESPOND TO THE NOTICE OF HEARING TO BE ISS UED BY THE LEARNED COMMISSIONER (APPEALS) AND REPRESENT ITS CASE IN PROPER AND EFFECTIVE MANNER. WITH THE AFORESAID OBSERVATIONS, THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) IS SET ASIDE. THE GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES . 8 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11.07.2018 SD/ - RAMIT KOCHAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 11.07.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI