SHAILY ENGINEERING PLASTICS LTD, MUMBAI V. DCIT 7(2)(1), MUMBAI

ITA 1773/MUM/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 8898 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 14-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay; Set aside
• Section: 201; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 1773 /MUM/2017 ASSESSMENT Y EAR: 2007 - 08 M/S SHAILY ENGINEERING PLASTICS LTD., 51, DARIYASTAN STREET, VADGADI, MUMBAI - 400003 PAN: AACCA6600R VS. THE DY. COMMISSIONER OF INCOME TAX 7(2) - 1, MUMBAI (APPELLANT) (RESPONDENT) A SSESSEE BY : NONE REVENUE BY : BHARTI SINGH ( DR ) DATE OF HEARING: 18 /12 /201 9 DATE OF PRONOUNCEM ENT: 30 / 12 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26.11.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 4 (FOR SHORT THE CIT(A) , MUMBAI , FOR THE ASSESSMENT YEAR 200 7 - 08 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE AO U/S 154 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE F OLLOWING EFFECTIVE GROUND S : - . THE ASSESSING OFFICER HAS NOT GIVEN CREDIT OF SURCHARGE, EDUCATION CESS AND HIGHER AND SECONDARY EDUCATION CESS PAID ON MINIMUM ALTERNATE TAX IN EARLIER YEARS WHILE COMPUTING TAX LIABILITY OF AY 2007 - 08 UNDER NORMAL PROVI SIONS OF THE INCOME TAX ACT, 1961. YOUR APPELLANT SUBMITS THAT SAME IS NOT JUSTIFIED AND THEREFORE BE DELETED. 2 ITA NO. 1773 / MUM/2017 ASSESSMENT YEAR: 2007 - 08 3. THIS CASE WAS FIXED FOR FINAL HEARING ON 18.12.2019. HOWEVER, ON THE SAID DATE WHEN THE CASE WAS CALLED OUT FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE THAT THIS CASE WAS ADJOURNED ON 26.09.2019, 15.07.2019, 02.05.2019 AND 12.12.2018 AT THE REQUEST OF THE ASSESSEE. SINCE, THE ASSESSEE DID NOT APPEAR DESPITE KNOWLEDGE OF DATE OF HEARING, WE DECIDED TO DISPOSE OF THE PRESE NT APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AFTER HEARING THE DEPARTMENTAL REPRESENTATIVE (DR). HENCE, WE ALLOWED THE LD. DR TO ARGUE THE CASE ON BEHALF OF THE DEPARTMENT . 4. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTING THE OR DER PASSED BY THE LD. CIT (A) SUBMITTED THAT SINCE THERE WAS A DELAY OF 46 DAYS IN FILING APPEAL AGAINST THE ORDER PASSED U/S 154, THE LD. CIT (A) HAS RIGHTLY DISMISSED THE APPEAL FILED BY THE ASSESSEE. THEREFORE, THERE IS NO MERIT IN THE PRESENT APPEAL. 5. WE HAVE PERUSED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A). THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THERE IS A DELAY OF 46 DAYS IN FILING THE APPEAL. THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF DELAY CONTE NTS OF WHICH ARE AS UNDER: - WE ARE IN THE PROCESS OF FILING AN APPEAL AGAINST THE ABOVE ORDER. WE SUBMIT THAT WE HAD RECEIVED THE ORDER PASSED U/S 154 ON 04/12/2012 RAISING THE DEMAND OF RS. 2,46,370/ - . WE UNDERSTAND THAT IF WE WERE REQUIRED TO FILE AN AP PEAL AGAINST THE ABOVE ORDER, WE SHOULD HAVE FILED IT WITHIN 30 DAYS OF RECEIPT OF THE ORDER. HOWEVER, THE REGISTERED OFFICE OF THE COMPANY IS SITUATED IN BARODA AND PLANT IS SITUATED AT RANIA, THE DIRECTORS OF THE COMPANY ARE NO AVAILABLE IN MUMBAI. MOREO VER, THE DIRECTORS OF THE COMPANY WERE TRAVELLING DURING THE LAST MONTH AND HENCE THE PROCESS OF FILING THE APPEAL GOT DELAYED. CONSIDERING THE ABOVE REASON, AS SUFFICIENT CAUSE FOR DELAY IN FILING THE APPEAL, WE REQUEST YOU TO KINDLY CONSIDER THE DELAY AN D ACCEPT THE APPEAL 6. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER ON THE GROUND THAT SINCE THE ASSESSING OFFICER HAD NOT GIVEN CREDIT OF SURCHARGE, EDUCATION CESS PAID ON MINIMUM ALTERNATE TAX IN EARLY YEARS WHILE COMPUTING THE TAX LIABILITY PERTAINI NG TO THE AY 2007 - 08 UNDER THE NORMAL PROVISIONS OF THE ACT, THE LD. 3 ITA NO. 1773 / MUM/2017 ASSESSMENT YEAR: 2007 - 08 CIT (A) OUGHT TO HAVE ALLOWED THE APPEAL OF THE ASSESSEE. WE NOTICE THAT THE LD. CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE POINT OF LIMITATION HOLDING THAT THE REASONS FOR D ELAY IN FILING APPEAL EXPLAINED BY THE ASSESSEE ARE NOT SUFFICIENT TO CONDONE THE DELAY. THIS EXPRESSION SUFFICIENT CAUSE HAS FALLEN FOR CONSIDERATION BEFORE THE HONBLE HIGH COURTS AS WELL AS BEFORE THE HONBLE SUPREME COURT, AND THE HONBLE COURTS ARE UN ANIMOUS IN OBSERVING THAT WHENEVER SUCH ISSUE COMES FOR CONSIDERATION BEFORE ADJUDICATING AUTHORITY, IT SHOULD BE CONSIDERED WITH JUSTICE ORIENTED APPROACH. IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTHERS, 1987 AIR 1353 THE HONBLE SUPRE ME COURT HAS HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. 7. IN OUR CONSIDERED VIEW, THE REASON STATED BY THE ASSESSEE BEFORE THE LD. CIT (A) APPEARS TO BE SUFFICIENT FOR HOLDING THAT THE ASSESSEE COULD NOT FILE THE APPEAL BEFORE THE LD CIT(A) WITHIN LIMITATION PERIOD DUE TO THE CIRCUMSTANCES BE YOND ITS CONTROL. HENCE, IN THE LIGHT OF THE LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF THE COLLECTOR LAND ACQUISITION V S. MST. KATIJI & OTHERS (SUPRA), WE DEEM IT PROPER TO CONDONE THE DELAY AND SEND THE APPEAL BACK TO THE LD. CIT (A) FOR D ECIDING THE SAME AFRESH. ACCORDINGLY , WE SET ASIDE THE IMPUGNED ORDER, CONDONE THE DELAY AND REMIT THE FILE BACK TO THE LD. CIT (A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 2008 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER , 2019 . SD/ - SD/ - ( SHAMIM YAH YA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 30 / 12 / 201 9 ALINDRA, PS 4 ITA NO. 1773 / MUM/2017 ASSESSMENT YEAR: 2007 - 08 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUAR D FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI