S.V. STEEL INDUSTRIES, NAVI MUMBAI V. ITO WD 22(3)-4, MUMBAI

ITA 1494/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78922 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 28-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 21-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIVEK VARMA, JM ./ I.T.A. NO. 1494/MUM/2011 ( / ASSESSMENT YEAR: 2007-08) S. V. STEEL INDUSTRIES 215, SHIV CENTRE, SECTOR 17, VASHI, NAVI MUMBAI / VS. INCOME TAX OFFICER WARD 22(3)-4, MUMBAI ./! ./PAN/GIR NO. AAYFS 5048 N ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : SHRI KIRAN MEHTA #$ ' % & / RESPONDENT BY : SHRI R. K. SAHU ' ( ) % * + / DATE OF HEARING : 28.05.2014 ,-. % * + / DATE OF ORDER : 30.05.2014 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI (CIT(A) FOR SH ORT) DATED 29.11.2010, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2007-08 VIDE ORDER DATED 27.11.2009. 2 ITA NO 1494/MUM/2011 (A.Y. 2007-08) S. V. STEEL INDUSTRIES VS. ITO 2. OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE A SSESSEE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL IN LIMINE , FOLLOWING THE DECISION BY THE TRIBUNAL IN THE CASE OF CIT VS. MULTIPLAN INDIA (P.) LTD ., REPORTED AT 38 ITD 320 (DEL). THE SAME IS NOT VALID IN LAW. ON BEING QUESTIONED BY THE BENCH WITH REGARD TO THE REASONS FOR THE NON- REPRESENTATION OF ITS CASE BEFORE THE FIRST APPELLA TE AUTHORITY, IT WAS SUBMITTED BY HIM THAT THE SAME WAS ON ACCOUNT OF SHRI VINAY AGGARWAL, PAR TNER IN THE APPELLANT-FIRM, BEING SERIOUSLY ILL; IN FACT, HOSPITALIZED AT THE RELEVAN T TIME, AND UNDERGOING TREATMENT FOR A RARE DISEASE. AN AFFIDAVIT DATED 20.12.2013, BEARING THE AVERMENTS BY SHRI VINAY AGGARWAL WAS ADDUCED BY HIM, WHICH IS PLACED ON RECORD. A SE T OF DOCUMENTS, BEING THE INPATIENT BILL DATED 11.12.2010 BY BREACH CANDY HOSPITAL AND INSURANCE PAPERS, ETC. WERE ALSO FURNISHED BY HIM IN SUPPORT OF THE ASSESSEES CONTE NTIONS. THE ASSESSEE IS A FIRM OF TWO PARTNERS, I.E., SHRI VINAY AGGARWAL AND HIS FATHER, WITH THE FORMER LOOKING AFTER THE ACCOUNTS AND BEING WELL VERSED IN TAX MATTERS. IT I S FOR THESE REASONS THAT THE ASSESSEE COULD NOT ATTEND THE PROCEEDINGS BEFORE THE FIRST A PPELLATE AUTHORITY ON THE TWO DATES OF HEARING GRANTED BY HIM. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE CONSISTENT VIEW OF THE TRIBUNAL IN RESPECT OF T HE ORDERS BY THE FIRST APPELLATE AUTHORITY UNDER THE ACT IS THAT THE SAME, IN VIEW O F SECTION 250(6) OF THE ACT, HAS TO BE NECESSARILY BY WAY OF A SPEAKING ORDER, DECIDING TH E ISSUE/S ARISING ON MERITS, BOTH QUA THE LEGAL AND THE FACTUAL ASPECT/S OF THE MATTER. A S SUCH, EVEN WHERE PER FORCE CIRCUMSTANCES THE SAME IS PASSED EX PARTE , IT HAS TO BEAR THE REASONS INFORMING HIS DECISION/S ON THE POINTS ARISING FOR DETERMINATION. THE IMPUGNED ORDER IS, THUS, IN OUR VIEW NOT SUSTAINABLE IN LAW. THE PURPOSE OF OUR ENQUIRY INTO THE REASONS FOR THE ASSESSEES NON-ATTENDANCE BEFORE THE LD. CIT(A), EVEN AS CLARIFIED DURING THE HEARING ITSELF, WAS TO ASCERTAIN IF THERE HAS BEEN ANY ABDICATION OF RESPONSIBILITY ON THE PA RT OF THE ASSESSEE TOWARD HIS LEGAL OBLIGATIONS. THE ASSESSEE CANNOT ABUSE THE PROCESS OF LAW BY ACTING IN A NONCHALANT OR 3 ITA NO 1494/MUM/2011 (A.Y. 2007-08) S. V. STEEL INDUSTRIES VS. ITO LACKADAISICAL MANNER AND NOT APPEAR BEFORE THE AUTH ORITIES BELOW, AND THEN SEEK REDRESSAL IN THE APPELLATE PROCEEDINGS BEFORE A HIGHER FORUM. AS SUCH, EVEN THOUGH THE REVENUE AUTHORITY MAY NOT BE CORRECT IN LAW IN DISMISSING T HE ASSESSEES APPEAL IN LIMINE , THE ASSESSEES ACTION, WHERE DELIBERATE OR NOT BONA FIDE , WOULD WARRANT IMPOSITION OF COST. UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CA SE, WE ARE CONVINCED OF THE ASSESSEES BONA FIDES AND, ACCORDINGLY, REFRAIN FROM IMPOSING ANY COST. THE MATTER WOULD ACCORDINGLY TRAVEL BACK TO THE FIL E OF THE LD. CIT(A), WHICH WE DO BY SETTING ASIDE THE IMPUGNED ORDER, AND WHO SHA LL DECIDE THE ISSUE/S AGITATED BEFORE HIM IN ACCORDANCE WITH LAW AFTER HEARING THE PARTIE S BEFORE HIM. THE ASSESSEE, EVEN AS ASSURED BY THE LD. AR, SHALL EXTEND FULL COOPERATIO N IN THE PROCEEDINGS BEFORE THE LD. CIT(A). WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES, WHICH RESULT WAS PRONOUNCED AT THE CONCLUSION OF THE HEARING ON MAY 28, 2014 ITSELF. SD/- SD/- (VIVEK VARMA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' 0) MUMBAI; 1( DATED : 30.05.2014 .(../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 2* ( ) / THE CIT(A) 4. ' 2* / CIT - CONCERNED 5. 5 6 #*(78 , + 78. , ' 0) / DR, ITAT, MUMBAI 6. 6 9 : ) / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , ' 0) / ITAT, MUMBAI