SHIELD TRADELINKS P.LTD, MUMBAI V. ITO 7(2)(3),

ITA 1476/MUM/2013

• Counselvise Citation: 147619914 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 08-12-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: BHUPENDRA SHAH
• Keywords: Principle of natural justice

Judgement Text

, , ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , .. , ! BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO.1476/MUM/2013 ' ' ' ' #' #' #' #' / ASSESSMENT YEAR: 2002-03 SHIELD TRADELINKS PVT. LTD. 51, BROACH STREET KAPADIA CHAMBER, 1 ST FLOOR MASJID BUNDER, MUMBAI-400201 VS. INCOME-TAX OFFICER-7(2)(3), MUMBAI ( $% / APPELLANT ) ( &'$% / RESPONDENT) P.A. NUMBER : AAECS5456C $% ( ) / APPELLANT BY: SHRI BHUPENDRA SHAH &'$% ( ) / RESPONDENT BY : SHRI NEIL PHILIP ( *+ / DATE OF HEARING : 08/12/2014 ,-# ( *+ / DATE OF PRONOUNCEMENT : 08/12/2014 O R D E R PER JOGINDER SINGH, JM: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 22/11/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MUM BAI, CHALLENGING THE CONFIRMATION OF DISALLOWANCE OF COMMISSION PAYM ENT OF RS.23,66,028/- WITHOUT CONSIDERING THE FACTS. AT TH E TIME OF HEARING 2 SHIELD TRADELINKS PVT. LTD THE LD. COUNSEL FOR THE ASSESSEE SHRI BHUPENDRA SAH A ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED WHEREAS SHRI NEIL PHILIP, LD. DR DEFENDED THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DECLARED TOTAL INCOME OF RS.1,88,573/- IN ITS RETUR N FILED ON 31/10/2002. THE ASSESSMENT WAS COMPLETED U/S 143(3 ) R.W.S. 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT) ON 2 9/12/2009 DETERMINING THE TOTAL INCOME AT RS.25,54,601/-. TH E ASSESSING OFFICER DISALLOWED THE COMMISSION PAYMENT OF RS.23, 66,028/- MADE TO M/S MOIRA STEELS LTD. ON THE GROUND THAT THE PAYMEN TS WERE BOGUS. THE STAND OF THE ASSESSEE WAS THAT THE REPLY DATED 18/11/2009 FILED BY M/S MOIRA STEELS LTD. WAS NOT CONSIDERED DURING ASSESSMENT STAGE. 2.1. THE AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY. THE LD. COMMISSIONER OF INCOME TAX (APP EALS) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION BY T AKING RECOURSE TO THE DECISION IN B.N. BHATACHARYAJI AND OTHERS (118 ITR 461) AND ANOTHER DECISION IN CIT V/S MULTIPLAN INDIA 38 ITD 320 (DEL.). WE NOTE THAT IN SPITE OF ISSUANCE OF NOTICE BY THE OFF ICE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE D ID NOT APPEAR, THEREFORE, HE DISMISSED THE APPEAL OF THE ASSESSEE. IT IS ALSO NOTED THAT THERE IS NO MENTION IN THE IMPUGNED ORDER THAT NOTICES ISSUED TO THE ASSESSEE WERE ACTUALLY SERVED UPON THE ASSESSEE . HOWEVER, THE LAST NOTICE WAS CLAIMED TO BE SERVED UPON THE ASSES SEE. FACT REMAINS THAT DUE TO NON-APPEARANCE OF THE ASSESSEE, THE APP EAL WAS DECIDED EX-PARTY. EVEN BEFORE THE LD. COMMISSIONER OF INCO ME TAX (APPEALS), 3 SHIELD TRADELINKS PVT. LTD AS MENTIONED IN THE GROUNDS OF APPEAL/STATEMENT OF FACTS, THE STAND OF THE ASSESSEE WAS THAT THE REPLY FROM M/S MOIRA S TEEL LTD. DATED 18/11/2009 WAS NOT CONSIDERED BY THE ASSESSING OFFI CER. WITHOUT GOING INTO MUCH DELIBERATION AND KEEPING IN VIEW TH E PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, IN THE INTEREST OF JU STICE AND ALSO NO PREJUDICE IS CAUSED TO EITHER SIDE, WE REMAND THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE APPEAL OF THE A SSESSEE AFRESH IN ACCORDANCE WITH LAW FOR WHICH DUE OPPORTUNITY OF BE ING HEARD, WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUB STANTIATE ITS CLAIM, BE PROVIDED TO THE ASSESSEE. THUS, APPEAL OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATI STICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F THE HEARING ON 08/12/2014. SD/- SD/- B.R. BASKARAN JOGINDER SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED -08/12/2014 F{X~{T? P.S/. . . . . . . ( (( ( &*/ &*/ &*/ &*/ 0/#* 0/#* 0/#* 0/#* / COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. /2 &* , , / DR, ITAT, MUMBAI 4 SHIELD TRADELINKS PVT. LTD 6. 23' 4 / GUARD FILE. . . . . / BY ORDER, '/* &* //TRUE COPY// 5 55 5 / 6 6 6 6 7 7 7 7 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI