JAZAN AGRO TEX PVT. LTD., MUMBAI V. ITO 1(2)(1), MUMBAI

ITA 189/MUM/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0871 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC-1
• Assessment Year: 2010-2011
• Appeal Filed On: 31-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 144; 142(1); 133(6); 194C; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER ITA No.189/M/2022 Assessment Year: 2010-11 M/s. Jazan Agro Tex Pvt. Ltd., 701, Emerald Esley 2, Royal Palm Arey Milk Colony, Goregaon East, Mumbai – 400 063 PAN: AACCJ1127G Vs. Income Tax Officer- 1(2)(1), Aayakar Bhavan, M.K. Road, New Marine Lines, Mumbai – 400 020 (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri Kiran P. Unavekar, D.R. Date of Hearing : 30.05.2022 Date of Pronouncement : 30.05.2022 O R D E R Per Kuldip Singh, Judicial Member: Appellant M/s. Jazan Agro Tex Pvt. Ltd (hereinafter referred to as ‘assessee’) by filing present appeal sought to set aside the impugned order passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] on the grounds inter alia that: “1. 1. NOT GIVING PROPER OPPORTUNITY: 1.1 The National Faceless Appeal Center ("the NFAC") erred in passing an ex - parte order under section 250 of the Income tax Act, 1961 ("the Act") thereby confirming the reassessment order passed by the Income - tax Officer - 1 (2) (1), Mumbai ("the A.O.") under section 144 r.w.s. 147 of the Act in breach of the principles of natural ITA No.189/M/2022 M/s. Jazan Agro Tex Pvt. Ltd. 2 justice, in as much as no sufficient, proper and effective opportunity of being heard given to the Appellant. 1.2 The NFAC erred in not providing sufficient and effective opportunity of hearing to the Appellant during the appellate proceedings. 1.3 The NFAC failed to appreciate, that the Appellant was prevented by the reasons beyond its control to represent its case properly, effectively and fully before the NFAC. 1.4 It is submitted that in the fact and circumstance of the case and in law, the order of the NFAC was bad and illegal and liable to be quashed and set aside. WITHOUT PREJUDICE TO THE ABOVE: 2. REASSESSMENT The A.O. erred in initiating reassessment proceedings and framed assessment of the Appellant by invoking the provisions of Section 147 r.w.s 148 of the Act. WITHOUT FURTHER PREJUDICE TO THE ABOVE: 3. BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT: 3.1 The NFAC erred in confirming the action of the A.O. in framing the best judgment assessment by invoking the provisions of section 144 of the Act. 3.2 While doing so, the NFAC failed to appreciate that: (a) the necessary conditions for invoking the provisions of section 144 of the Act were not fulfilled; (b) no sufficient and effective opportunity was provided to the Appellant at the assessment stage; and (c) in any case, that the Appellant was prevented by the reasons beyond its control to represent its case properly and fully before the A.O. WITHOUT FURTHER PREJUDICE TO THE ABOVE: 4, ADDITION OF Rs. 32.18.034/-: 4.1 The NFAC erred in confirming the addition of: Rs.31,88,201/- being contract receipt on which tax was deducted at source u/s. 194 C of the Act and; Rs. 29,836/- being commission receipt on which tax was deducted at source u/s. 194 H of the Act. ITA No.189/M/2022 M/s. Jazan Agro Tex Pvt. Ltd. 3 4.2 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for. 4.3 Without prejudice to the above, and in the alternative, it is submitted that the quantum of addition is arbitrary, excessive and not in accordance with law. 5. LIBERTY The Appellant craves leave to add, alter, delete or modify all or any the above ground at the time of hearing.” 2. Briefly stated facts necessary for adjudication of the controversy at hand are : from the information available on record Assessing Officer (AO) noticed that the assessee has not filed return of income for the year under consideration, but has received contract receipt under section 194C of the Income Tax Act, 1961 (for short ‘the Act’) to the tune of Rs.31,88,201/- and commission under section 194H to the tune of Rs.29,836/- for financial year 2009-10. A computer generated letter for the year under assessment was issued to the assessee for necessary compliance. On failure of the assessee to respond, reopening proceedings have been initiated under section 147/148 of the Act. Inspector deputed to serve the notice on the assessee under section 142(1) of the act reported that he is not residing at the given address. Notice issued under section 133(6) of the Act got duly served on the parties but they failed to respond. Consequently, AO proceeded to make the addition to the tune of Rs.31,88,201/- and Rs.29,836/- under section 194C and 194H respectively of the Act and thereby framed the assessment under section 144 read with section 147 of the Act. 3. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has upheld the addition by dismissing the appeal. ITA No.189/M/2022 M/s. Jazan Agro Tex Pvt. Ltd. 4 Feeling aggrieved the assessee has come up before the Tribunal by way of filing present appeal. 4. Despite issuance of notice to the assessee company none appeared on behalf of it, so the Bench decided to decide this appeal on the basis of material available on record with the assistance of the Ld. D.R. for the Revenue. 5. We have heard the Ld. Departmental Representative for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 6. Bare perusal of the para 5.1 of the impugned order passed by the Ld. CIT(A) goes to show that notice under section 250 of the Act was shown to have been issued through ITBA Portal to the assessee but compliance thereof has not been brought on record. When service of the notice of the assessee has not been proved on file, adequate opportunity of being heard appears to have not been provided to the assessee. We are of the considered view that to decide the issue once for all and to avoid multiplicity of the proceedings, providing adequate opportunity of being heard is a sine qua non. So this appeal is remitted back to the AO to decide afresh after providing opportunity of being heard to the assessee. Order pronounced in the open court on 30.05.2022. Sd/- Sd/- (OM PRAKASH KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 30.05.2022. * Kishore, Sr. P.S. ITA No.189/M/2022 M/s. Jazan Agro Tex Pvt. Ltd. 5 Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.