KSL INDUSTRIES LTD, MUMBAI V. DCIT CEN CIR 37, MUMBAI

ITA 1543/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70633 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SALIL KAPOOR IZRFKHZ DH LS
• Keywords: Additional evidence; Non compliance

Judgement Text

M/S KSL AND INDUSTRIES LTD. - 1 - VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI JH JKTSUNZ FLAG YS[KK LNL; ,OA JH LAT; XXZ U;KF;D LNL; DS LE {K BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG JUDICIAL MEMBER VK;DJ VIHY LA[;K /ITA NO.1543/MUM/2013 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR:- 2008-09 VK;DJ VIHY LA[;K /ITA NO.1544/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR:- 2009-10 M/S KSL AND INDUSTRIES LTD. 11/12 RAGHUVANSHI MILL COMPOUND, LOWER PAREL, MUMBAI CUKE@ VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIR-37, ACIT (APPEALS)-41 MUMBAI. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ APPELLANT BY SHRI SALIL KAPOOR IZR;FKHZ DH VKSJ LS @ RESPONDENT BY SHRI A.C. TEJPAL VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER RAJENDRA SINGH, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.12.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2008-0 9 AND 2009-10. IN BOTH THE APPEALS THE ASSESSEE IN ADDITION TO RAISING DIS PUTES ON MERIT HAS ALSO RAISED AN ADDITIONAL GROUND REGARDING LACK OF OPPOR TUNITY PROVIDED BY CIT(A) BEFORE PASSING THE ORDER. AS THE DISPUTES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THESE ARE BEING DISPOSED OFF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. LQUOKBZ DH RKJH[K@ DATE OF HEARING 01-8-2013 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 7-8-2013 M/S KSL AND INDUSTRIES LTD. - 2 - 2. WE FIRST TAKE UP THE DISPUTE RELATING TO LACK OF ADEQUATE OPPORTUNITY BY THE CIT(A). A PERUSAL OF THE ORDERS OF CIT(A) SHOWS THAT BOTH THE APPEALS HAD BEEN FIXED FOR HEARING ON 1.8.2011 WHEN THE ADJOURN MENT HAD BEEN SOUGHT WHICH HAD BEEN ALLOWED ON 8.11.20011. THEREAFTER TH E APPEALS HAD BEEN FIXED ON SEVERAL DATES WHEN THE ASSESSEE HAD ONLY S OUGHT ADJOURNMENT. FINALLY THE APPEAL HAD BEEN FIXED FOR FINAL HEARING ON 18.12.2012 WHEN THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE. CI T(A) THEREAFTER DECIDED THE APPEAL EXPARTE IN WHICH THE ADDITION MADE BY AO HAD BEEN CONFIRMED. 2.1 BEFORE US LEARNED AR FOR THE ASSESSEE SUBMITTED THAT IT WAS NOT A CASE OF NON COMPLIANCE BY THE ASSESSEE ON THE VARIOUS DA TES OF HEARING. THE ASSESSEE HAD BEEN APPEARING ON THE DATES FIXED FOR HEARING BUT HAD BEEN SEEKING ADJOURNMENT TO FILE THE RELEVANT DETAILS. T HE ASSESSEE WAS HOWEVER NOT AWARE REGARDING THE FINAL DATE OF HEARING FIXED ON 18.12.2012. IT WAS POINTED OUT THAT THE CHARTERED ACCOUNTANT FIRM WHO WAS REPRESENTING THE CASE OF THE ASSESSEE IN THE MATTER DID NOT INFORM T HE ASSESSEE OR TAXATION DEPARTMENT REGARDING THE LAST OPPORTUNITY OF HEARIN G GRANTED BY THE CIT(A) ON 18.12.2012, WHICH WAS THE REASON FOR NON COMPLIA NCE. AN AFFIDAVIT TO THAT EFFECT HAS BEEN FILED FROM MR. AMRIT LAL TIWAR I THE TAXATION MANAGER OF THE ASSESSEE COMPANY. IT WAS ALSO POINTED OUT THAT CIT(A) HAD SIMPLY CONFIRMED THE ORDER OF AO AND HAD NOT DECIDED THE I SSUE BY WAY OF A REASONED AND SPEAKING ORDER. IT WAS ACCORDINGLY URG ED THAT THE ORDERS OF CIT(A) SHOULD BE SET ASIDE AND THE MATTER MAY BE RE STORED BACK TO HIM FOR DECIDING THE APPEAL AFRESH AFTER ALLOWING OPPORTUNI TY OF HEARING TO THE ASSESSEE. LEARNED AR ALSO SUBMITTED THAT THE ADDITI ON HAD BEEN MAINLY MADE ON ACCOUNT OF PURCHASE OF GOODS ON THE GROUND THAT THERE WAS NO EVIDENCE TO SUPPORT THE PURCHASES. THE ASSESSEE HAD BEEN TRYING TO GET CONFIRMATIONS FROM THE PARTIES BUT WAS NOT ABLE TO PROCURE THE SAID EARLIER. THE ASSESSEE HAS NOW OBTAINED CONFIRMATIONS ALONG W ITH PAN NOS. OF THE PARTIES WHICH ARE NOW BEING FILED BEFORE THE TRIBUN AL AS ADDITIONAL EVIDENCES M/S KSL AND INDUSTRIES LTD. - 3 - WHICH MAY BE ADMITTED AND SENT BACK TO THE CITA FOR CONSIDERATION AS PER LAW, AS THESE ADDITIONAL EVIDENCES GO TO THE ROOT O F THE MATTER. THE LEARNED DR ON THE OTHER HAND ARGUED THAT CIT(A) HAD GIVEN A DEQUATE OPPORTUNITY TO THE ASSESSEE TO REPRESENT THE MATTER WHICH THE ASSE SSEE HAD NOT AVAILED OF. IT WAS POINTED OUT THAT AFTER THE FIRST DATE OF HEARIN G ON 1.8.2011 CIT(A) HAD GIVEN ABOUT DOZEN OPPORTUNITIES AND YET THERE WAS N O COMPLIANCE ON THE PART OF THE ASSESSEE OVER A PERIOD OF ONE YEAR. IT WAS THEREFORE ARGUED THAT THE ASSESSEE WAS NOT CORRECT IN STATING THAT NO PRO PER OPPORTUNITY HAD BEEN GIVEN. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE ASSESSEE HAS RAISED A GROUND IN BOTH THE APPEALS RE GARDING LACK OF PROPER OPPORTUNITY OF HEARING. THE CASE OF THE ASSESSEE IS THAT IT WAS NOT AWARE ABOUT THE LAST DATE OF HEARING FIXED BY CIT(A) ON 1 8.12.2012 AS THE CHARTERED ACCOUNTANT FIRM WHO WAS REPRESENTING THE MATTER BEF ORE CIT(A) HAD NOT INTIMATED THE ASSESSEE OR ITS TAXATION DEPARTMENT R EGARDING THE LAST OPPORTUNITY PROVIDED BY THE CIT(A). AN AFFIDAVIT TO THAT EFFECT HAS BEEN FILED FROM THE TAXATION MANAGER. NO DOUBT ITS TRUE THAT T HE CIT(A) HAD GIVEN SEVERAL OPPORTUNITIES FROM TIME TO TIME TO FILE NEC ESSARY DETAILS AND EVIDENCES. BUT THE ASSESSEE BEING NOT AWARE ABOUT T HE LAST AND FINAL OPPORTUNITY GIVEN, IT COULD NOT BE SAID THAT THE AS SESSEE HAD BEEN PROVIDED WITH OPPORTUNITY OF HEARING. THE PLEA THAT THE ASSE SSEE WAS NOT AWARE OF THE LAST OPPORTUNITY OF HEARING IS SUPPORTED BY THE AFF IDAVIT FILED BY TAXATION MANAGER. NOTHING HAS BEEN PLACED ON RECORD TO CONTR OVERT THE CONTENTS OF THE SAID AFFIDAVIT. WE ALSO FIND THAT CIT(A) IN THE EXPARTE ORDER HAD SIMPLY CONFIRMED THE ORDER OF AO WITHOUT PASSING ANY REASO NED AND SPEAKING ORDER. WE, ARE THEREFORE OF THE OPINION THAT IN THE INTERE ST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY BEFORE CIT(A) TO REPRESENT ITS CASE. THE ASSESSEE HAS ALSO FILED ADDITIONAL EVIDENCE BEFORE US IN THE FORM OF CONFIRMATIONS FROM THE PARTIES GIVING PAN NOS. IT H AS BEEN SUBMITTED THAT THESE CONFIRMATIONS COULD NOT BE OBTAINED FROM THE PARTIES EARLIER. THESE M/S KSL AND INDUSTRIES LTD. - 4 - ADDITIONAL EVIDENCES GO TO THE ROOT OF THE MATTER A ND WILL BE HELPFUL IN ARRIVING AT A FAIR CONCLUSION ON THE ISSUE RAISED. THEREFORE WE ADMIT THE ADDITIONAL EVIDENCES AND SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE APPEAL BACK TO HIM FOR PASSING A FRESH ORDER AFTER NECESS ARY EXAMINATION INCLUDING THE EXAMINATION OF ADDITIONAL EVIDENCES AFTER PROVI DING NECESSARY OPPORTUNITY TO THE AO AND AFTER HEARING TO ASSESSEE . 5. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7-8- 2013 SD/- SD/- (SANJAY GARG) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER SKS SR. P.S, MUMBAI DATED 7.8.2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI