M/s. J.M. Industries, Ahmednagar V. DICT, Ahmednagar Circle, Ahmednagar

ITA 2088/PUN/2012

• Counselvise Citation: 208824514 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 25-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: MRS M N KULKARNI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.2087 AND 2088/PN/2012 (ASSESSMENT YEARS : 2007-08 & 2008-09) M/S. J.M. INDUSTRIES, L-195, MIDC, AHMEDNAGAR PAN NO.AACFJ4581F .. APPELLANT VS. DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR .. RESPONDENT ASSESSEE BY : MRS. M.N. KULKARNI REVENUE BY : SHRI S.P. WALIMBE DATE OF HEARING : 11-03-2014 DATE OF PRONOUNCEMENT : 11-03-2014 ORDER PER BENCH : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE COMMON ORDER DATED 01-03-2012 OF THE CIT(A)-I, PUNE RELATING TO ASSESSMENT YEARS 2007-08 AND 2008-09 RESPECTIVELY. FOR THE SAKE OF CONVENIENCE, BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A FIRM ENGAGED IN THE BUSINESS OF MANUFACTURING OF ALUMINIUM EXTRU DED PROFILE SECTIONS, PIPES, FRAMES ETC. THE ASSESSEE HAD FILE D ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.85,07,390/- FOR A.Y. 2 007-08 AND RS.29,59,120/- FOR A.Y. 2008-09. THE ASSESSING OFF ICER COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME AT RS.1,07, 20,416/- FOR A.Y. 2 2007-08 AND RS.64,35,406/- FOR A.Y. 2008-09 BY MAKI NG THE FOLLOWING ADDITIONS : ASST. YEAR RETURNED INCOME ADDITION MADE ASSESSED INCOME 2007-08 85,07,390/- DISALLOWANCE U/S.40A(2)(B) ON A CCOUNT OF COMMISSION RS.9,18,000/- DISALLOWANCE U/S.40A(2)(B) ON ACCOUNT OF SALARY RS.5,20,000/- ADDITION ON ACCOUNT OF BURNING LOSS RS7,75,026/- 1,07,20,416/- 2008-09 29,59,120/- DISALLOWANCE U/S.40A(2)(B) ON A CCOUNT OF COMMISSION RS.27,26,286/- DISALLOWANCE U/S.40A(2)(B) ON ACCOUNT OF SALARY RS.7,50,000/- 64,35,406/- 2.1 THE ASSESSEE FILED APPEALS BEFORE THE CIT(A) FO R BOTH THE YEARS. SINCE NONE APPEARED BEFORE THE CIT(A) DESPITE SERVI CE OF NOTICE THE LD.CIT(A) FIRST DISMISSED THE APPEALS BY APPLYING T HE RATIO OF THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTI PLAN INDIA (P) LTD. REPORTED IN 38 ITD 320 AND VARIOUS OTHER DECISIONS OF THE TRIBUNAL WHEREIN THE TRIBUNAL HAS DISMISSED THE APPEALS FOR NON-APPEARANCE. SIMULTANEOUSLY, THE LD.CIT(A) ALSO DECIDED THE ISSU E ON MERIT AND CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF DISALLOWANCE U/S.40A(2)(B) TOWARDS SALARY, COMMISSI ON INCOME AND ADDITION ON ACCOUNT OF BURNING LOSS. 2.2 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US CHALLENGING THE ABOVE ADDITIONS. 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2006-07 SU BMITTED THAT ALL THE ISSUES HAVE BEEN DECIDED BY THE TRIBUNAL IN ASSESSE ES OWN CASE UNDER 3 IDENTICAL CIRCUMSTANCES. THEREFORE, THE ADDITION M ADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) SHOULD BE DELET ED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEAR BE FORE THE CIT(A), HE PASSED THE EXPARTE ORDER DISMISSING THE APPEALS FIL ED BY THE ASSESSEE. THEREFORE, THE MATTER MAY BE RESTORED TO THE FILE O F THE CIT(A) FOR DECIDING THE ISSUE AFRESH. 5. AFTER HEARING BOTH THE SIDES, WE FIND THE LD.CIT (A) DISMISSED THE APPEALS FILED BY THE ASSESSEE FOR NON-APPEARANC E BY APPLYING THE RATIO OF THE DECISION OF THE TRIBUNAL IN THE CASE O F MULTI PLAN INDIA (P) LTD. (SUPRA). AT THE SAME TIME HE HAS ALSO DECIDED THE ISSUE ON MERIT AGAINST THE ASSESSEE. ADMITTEDLY, THE ORDER WAS PA SSED BY THE LD.CIT(A) ON 01-03-2012 WHEREAS THE ORDER OF THE TR IBUNAL FOR A.Y. 2006-07 WAS PASSED ON 27-04-2012 AND WAS RECEIVED B Y THE ASSESSEE ON 11-05-2012 WHEREIN IDENTICAL ISSUES HAVE BEEN DE CIDED IN FAVOUR OF THE ASSESSEE. CONSIDERING THE TOTALITY OF THE FACT S OF THE CASE AND CONSIDERING THE EXPLANATION OF THE LD. COUNSEL FOR THE ASSESSEE FOR NON- APPEARANCE BEFORE THE LD.CIT(A) ON THE DATE OF HEAR ING, WE, IN THE INTEREST OF JUSTICE, DEEM IT PROPER TO RESTORE THE MATTER TO THE FILE OF THE LD.CIT(A) FOR DECIDING THE ISSUES AFRESH AND IN ACC ORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 4 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 11-03-2014. SD/- SD/- (R.S.PADVEKAR ) ( R.K. PAN DA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED 11 TH MARCH, 2014 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE