ADHAAR RETAILING LTD, NAVI MUMBAI V. DCIT 10(2), MUMBAI

ITA 1399/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70921 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 04-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Depreciation
• Section: 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 1399/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 ADHAAR RETAILING LTD., C/O. FUTURE AGROVET LTD., 701/702, BANKING COMPLEX-II, OPP.DANA BANDAR, PLOT NO.9, SECTOR -19A, SANPADA, NAVI MUMBAI 400705 % % % % / VS. THE DCIT 10(2), AAYKAR BHAVAN, MK ROAD, MUMBAI. ' '# ./ ( ./ PAN/GIR NO. : AAFCA 8793G ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , '/ APPELLANT BY SHRI. VIPUL JOSHI *+') 7 , ' /RESPONDENT BY SHRI S.S.RANA % 7 8# / DATE OF HEARING : 04/09/2013 9 & 7 8# / DATE OF PRONOUNCEMENT : 04/09/2013 ': / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-21, MUMBAI DATED 20/12/2011 FO R ASSESSMENT YEAR 2008- 09. GROUNDS OF APPEAL READ AS UNDER: 1.1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) - 21, MUMBAI, [LD. CIT (A)] ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE GROUND THAT THERE WAS NO COMPLIANCE AS WELL AS NON ATTENDANCE ON VARIOUS DAT ES OF HEARING BY THE APPELLANT AND THEREFORE DID NOT WANT TO DEFEND THE APPEAL. ./ I.T.A. NO. 1399/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 2 1.2 WHILE DOING SO, THE LD. CIT (A) ERRED IN NOT AP PRECIATING THE FACT THAT NON- COMPLIANCE AND THE NON ATTENDANCE ON VARIOUS DATES OF HEARING ON THE PART OF THE APPELLANT WAS SOLELY DUE TO THE REASONS BEYOND ITS CONTROL AND WAS NOT DELIBERATE AND NOT DUE TO ANY NEGLIGENCE ON ITS PART AND WAS F OR BONA FIDE AND GENUINE REASONS. 1.3 IT IS SUBMITTED THAT IN THE FACT AND CIRCUMSTAN CE OF THE CASE AND IN LAW, THE ACTION OF THE ID. CIT (A) WAS BAD AND ILLEGAL. WITHOUT PREJUDICE TO THE ABOVE: 2.1 THE DEPUTY COMMISSIONER OF INCOME TAX-10 (2), M UMBAI [THE A.O.] ERRED IN DISALLOWING THE APPELLANTS CLAIM OF DEPRECIATION U NDER SECTION 32 OF THE INCOME TAX ACT, 1961 ON RS. 4,57,75,375/-. 2.2 WHILE DOING SO, THE A.O. FAILED TO APPRECIATE T HAT: (I) THE SAID AMOUNT REPRESENTED BUSINESS ASSET OF T HE APPELLANT ELIGIBLE FOR DEPRECIATION UNDER SECTION 32 OF THE ACT. (II) ALL THE CONDITIONS PRESCRIBED FOR CLAIMING DEP RECATION WERE SATISFIED BY THE APPELLANT 2.3 IT IS SUBMITTED THAT, IN THE FACTS AND CIRCUMST ANCES OF THE CASE, AND IN LAW, NO SUCH DISALLOWANCE WAS CALLED FOR. 2.4 THE APPELLANT PRAYS THAT THE CLAIM OF THE APPEL LANT FOR DEPRECIATION OF RS. 4,57,75,375/- BE ALLOWED. 3.1 THE AO ERRED IN MAKING AN ADDITION OF RS.1L, 43 ,431/- ON MERELY ON THE BASIS OF THE INFORMATION RECEIVED UNDER THE ANNUAL INFORMATI ON REPORT (A.I.R.). 3.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH ADDITION WAS CALLED FOR. 2. THE APPEAL WAS BELATEDLY FILED BEFORE LD. CIT(A) . IT WAS DELAYED BY 30 DAYS. AFTER HEARING THE ASSESSEE, THE LD.CIT(A) CONDONED THE DELAY. HOWEVER, AFTER GIVING VARIOUS OPPORTUNITIES WHICH ARE LISTED AT PA GE -3 OF THE ORDER OF LD. CIT(A), LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE AS SESSEE ON THE GROUND THAT ASSESSEE DOES NOT WANT TO DEFEND ITS APPEAL. IT IS AGAINST SUCH ORDER OF LD. CIT(A) THE ASSESSEE HAS FILED AFOREMENTIONED GROUNDS OF AP PEAL. 3. IT WAS SUBMITTED BY LD. AR THAT IMPUGNED ORDER PASSED BY LD. CIT(A) IS DATED 28/12/2011. UPON COMING TO KNOW THAT LD. CIT (A) HAS DISMISSED THE APPEAL FOR WANT OF APPEARANCE ON BEHALF OF ASSESSE E AN APPLICATION DATED 23/1/2012 WAS FILED BEFORE LD. CIT(A), VIDE WHICH I T WAS SUBMITTED THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY OF BEING H EARD SHOULD BE GIVEN TO THE ./ I.T.A. NO. 1399/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 3 ASSESSEE AND APPEAL SHOULD BE ADJUDICATED ON MERITS . COPY OF SUCH APPLICATION IS FILED AT PAGES 1 TO 4 OF THE PAPER BOOK. 3.1 BRIEFLY, IT WAS SUBMITTED THAT ASSESSEE WAS OP ERATING FROM THE PREMISES OF FUTURE AGROVET LTD., THEREFORE, ALL THE NOTICES FOR APPEARING THE HEARING WAS SERVED AT THAT ADDRESS. HOWEVER, THE ASSESSEE HAD SHIFTED ITS OFFICE FROM NAVI MUMBAI TO DELHI IN THE YEAR 2011. UNFORTUNATELY , THE CHANGE OF ADDRESS WAS NOT INTIMATED TO THE DEPARTMENT. M/S. FUTURE AGRO VET LTD. DID NOT SEND THE NOTICES TO THE ASSESSEE WITHIN REASONABLE TIME, THE REFORE, ASSESSEE DID NOT RECEIVE THESE NOTICES FROM M/S. FUTURE AGROVET LIMITED. TH E CHARTERED ACCOUNTANT OF THE ASSESSEE PERSONALLY VISITED THE OFFICE OF LD. C IT(A) ON 24/10/2011 ASKING FOR ADJOURNMENT, HOWEVER, A FRESH NOTICE WAS STATED TO BE ISSUED. IN SHORT, IT WAS PLEADED THAT NON-APPEARANCE OF THE ASSESSEE WAS NOT DUE TO ANY NEGLIGENCE OR BY WILLFUL DEFAULT BUT THE SAME WAS SOLELY DUE TO THE SITUATION BEYOND THE CONTROL OF THE ASSESSEE. IN THE PAST THERE WAS NO SUCH DEFAUL T BY THE ASSESSEE. 3.2 ON THE BASIS OF AFOREMENTIONED FACTS IT WAS SUB MITTED BY LD. AR THAT THERE WAS NO DELIBERATE DEFAULT OF THE ASSESSEE FOR NON- APPEARANCE BEFORE LD. CIT(A). HE SUBMITTED THAT ACCORDING TO PROVISIONS OF LAW LD . CIT(A) IS REQUIRED TO DISPOSE OF THE APPEAL OF THE ASSESSEE BY WAY OF A SPEAKING ORDER AND REFERENCE IN THIS REGARD WAS MADE TO THE DECISION OF GUJARAT THEMIS B IOSYN LTD. VS. JCIT , 74 ITD 339(AHD). 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. IT MAY BE MENTIONED HERE THAT THE C ONDUCT OF THE ASSESSEE FOR NON-APPEARANCE BEFORE LD. CIT(A) IS NOT APPRECIABLE . WHENEVER NOTICE IS ISSUED BY THE APPELLATE AUTHORITY, THE ASSESSEE IS REQUIRE D TO REPRESENT THE SAME UNLESS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FOR WHICH AN APPLICATION OF ADJOURNMENT IS REQUIRED TO BE FILED. IN THE PRES ENT CASE, AFTER LD. CIT(A) HAS PASSED THE ORDER THE ASSESSEE HAS SUBMITTED THE RE ASONS FOR NON-APPEARANCE. HOWEVER, WHILE DECIDING THE APPEAL LD. CIT(A) IS RE QUIRED TO PASS A SPEAKING ./ I.T.A. NO. 1399/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 4 ORDER AND SUCH REQUIREMENT OF PROVISION IS NOT COMP LIED WITH. THE REQUIREMENT TO PASS AN ORDER BY LD. CIT(A) IS FOUND PLACED IN THE PROVISIONS OF SECTION 250(6) OF THE ACT, WHICH READ AS UNDER: (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOS ING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATIO N, THE DECISION THEREON AND THE REASON FOR THE DECISION. ACCORDING TO THE AFOREMENTIONED PROVISION LD. CIT(A ) IS REQUIRED TO DISPOSE OF THE APPEAL BY AN ORDER IN WRITING WHICH SHALL STATE TH E POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR SUCH DECISION. IN THE APPEAL FILED BEFORE LD. CIT(A) THE ASSESSEE HAD AGITATED THE ASSESSMENT ORD ER ON VARIOUS GROUNDS WHICH INTER-ALIA INCLUDE NON-GRANTING OF PROPER AND SUFFI CIENT OPPORTUNITY BY THE AO. THE ASSESSEE HAS ALSO CHALLENGED VARIOUS OTHER ADD ITIONS. THESE GRIEVANCES OF THE ASSESSEE HAVE NOT BEEN ADDRESSED BY LD. CIT(A) IN HIS ORDER. THEREFORE, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTO RED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL FILED BY THE ASSESSEE ON MERITS AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. TO ENSURE COMPLIANCE BY THE ASSESSEE, WE DIRECT THE ASSESSEE TO APPEAR BEFORE LD. CIT(A) ON 12/11/2013. LD. A .R OF THE ASSESSEE HAS DULY TAKE N NOTE OF THE DATE ON WHICH THE ASSESSEE IS DIRECTED TO APPEAR BEFORE LD. CIT(A ). WITH THESE DIRECTIONS WE DISPOSE OF THIS APPEAL, WHICH IS CONSIDERED TO BE A LLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES, IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2013 . ': 7 & #' ; <%= 04/09/2013 7 > SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; <% DATED 04/09/2013 ./ I.T.A. NO. 1399/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 5 ': ': ': ': 7 77 7 *8?@ *8?@ *8?@ *8?@ A'@&8 A'@&8 A'@&8 A'@&8 / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. B ( ) / THE CIT(A)- 4. B / CIT 5. @C> *8% , , / DR, ITAT, MUMBAI 6. >D E / GUARD FILE. ':% ':% ':% ':% / BY ORDER, +@8 *8 //TRUE COPY// F FF F / G G G G (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS