MY DREAM TRADING P. LTD, MUMBAI V. ITO 3(2)2, MUMBAI

ITA 2114/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79270 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Assessee Lawyers: VIMAL PUNIMIYA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI , ! BEFORE SHRI SANJAY ARORA, AM AND DR. S. T. M. PAVA LAN, JM ' # I.T.A. NO. 2114/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) DREAM TRADING PVT. LTD. RECONDO COMPOUND, S. K. AHIRE MARG, WORLI, MUMBAI-400 030 # VS. INCOME TAX OFFICER 3(2)(2), MUMBAI $ #'%' ./PAN/GIR NO. AAECM 9786 E ( $& /APPELLANT ) : ( '($& / RESPONDENT ) $&)* / APPELLANT BY : SHRI VIMAL PUNIMIYA '($&)* / RESPONDENT BY : SHRI SAMBIT MISHRA + ,)- / DATE OF HEARING : 17.06.2014 DATE OF ORDER : 30.06.2014 '.# 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)-4, MUMBAI (CIT(A) FOR SHO RT) DATED 28.12.2012, 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.) 2009-10 VIDE ORDER DATED 30.11.2011. 2 ITA NO. 2114/MUM/2013 (A.Y. 2009-10) DREAM TRADING PVT. LTD. VS. ITO 2. GROUND NO. 4 OF THE ASSESSEES APPEAL, WHICH REA DS AS UNDER, RAISES AN ISSUE OF PROPRIETARY AND NATURAL JUSTICE, APART FROM THE TWO ISSUES RAISED BY THE ASSESSEE PER ITS OTHER THREE GROUNDS CONTESTING DIFFERENT ADJUSTMENT S MADE IN ASSESSMENT: 4. THE LD. CIT(A) IS NOT JUSTIFIED IN PASSING AN E X-PARTE ORDER WITHOUT GIVING OPPORTUNITY OF BEING HEARD. THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESS EES COUNSEL, WAS ACCORDINGLY REQUIRED BY THE BENCH TO ADDRESS IT ON THE SAID GRO UND, I.E., IN CASE THE SAME WAS BEING PRESSED. AS EXPLAINED BY HIM, HEARING BEFORE THE FI RST APPELLATE AUTHORITY WAS FIXED FOR 19.12.2012. HOWEVER, AS THE NOTICE OF HEARING WAS N OT SERVED ON IT, THERE WAS NON- ATTENDANCE BY THE ASSESSEE ON THAT DATE. NO FURTHER NOTICE OF HEARING WAS ISSUED, SO THAT THERE WAS WITHOUT DOUBT AN ABSENCE OF A FAIR AND RE ASONABLE OPPORTUNITY BEING ACCORDED TO THE ASSESSEE TO PRESENT ITS CASE, VITIATING THE PROCEEDINGS. REFERENCE TO THE CASE LAW, AS IN THE CASE OF SINGHAL ENTERPRISES (P.) LTD. VS. CIT [2009] 315 ITR 246 (CAL.) AND O.G. SUNIL VS. DY. CIT [2013] 33 TAXMANN.COM 195 (KER), WAS MADE BY HIM. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 WE ARE CLEARLY NOT IMPRESSED WITH THE ARGUMENT MADE BY THE LD. AR BEFORE US. THE NOTICE OF HEARING DATED 19.12.2012 HAD COME BAC K UN-SERVED, WITH A POSTAL REMARK NOT KNOWN, AS CLEARLY STATED IN THE IMPUGNED ORDE R. THIS FACT HAS NOT BEEN DISPUTED BY THE ASSESSEE. FURTHER, WE OBSERVE A DIFFERENCE IN T HE ADDRESS COMMUNICATED TO THE DEPARTMENT PER FORM 35 (MEMORANDUM OF APPEAL) AND T HAT SPECIFIED IN THE APPEAL MEMO (FORM 36) BEFORE THE TRIBUNAL, SO THAT THE ASS ESSEE HAD CHANGED HIS ADDRESS, AND WHICH HAD NOT BEEN INTIMATED TO THE DEPARTMENT. WHEN THE ASSESSEES WHEREABOUTS WERE ITSELF NOT KNOWN THERETO, WHERE IS THE QUESTION OF THE OFFICE OF THE LD. CIT(A) ISSUING FRESH NOTICE/S OF HEARING TO THE ASSESSEE ? THE ASSESSEE IS ITSELF RESPONSIBLE FOR THE SAID N ON- REPRESENTATION BEFORE THE FIRST APPELLATE AUTHORITY . AT THE SAME TIME, HOWEVER, IT CANNOT BE DENIED THAT THERE HAS INDEED BEEN A NON-REPRESENTAT ION BY THE ASSESSEE, AND WHICH IS OF PRIME SIGNIFICANCE IN JUDICIAL OR QUASI JUDICIAL PR OCEEDINGS AND, FURTHER, THAT JUSTICE MUST NOT ONLY BE DONE BUT ALSO SEEM TO HAVE BEEN DONE. 3 ITA NO. 2114/MUM/2013 (A.Y. 2009-10) DREAM TRADING PVT. LTD. VS. ITO 3.2 WE, THEREFORE, IN THE INTEREST OF JUSTICE AND F AIRNESS OF PROCEDURE, IN-AS-MUCH AS THERE WAS NO SERVICE THROUGH AFFIXTURE, ONLY CONSID ER IT FIT AND PROPER TO LEVY A COST OF RS.5,000/- (FIVE THOUSAND ONLY) ON THE ASSESSEE, AN D WHICH COST SHALL BE DEPOSITED BY THE ASSESSEE WITH THE REVENUE BY JULY 31, 2014 , AS COMMUNICATED DURING HEARING. SUBJECT TO THE SAME, THE IMPUGNED ORDER IS SET ASIDE FOR A DEC ISION AFRESH BY THE LD. CIT(A) IN ACCORDANCE WITH THE LAW PER A SPEAKING ORDER AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY TO PRESENT ITS CASE. WE DECIDE ACCORDIN GLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. /0 -12 3/-) 4)5678 9 -) -:;! ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 17, 201 4 AT THE CONCLUSION OF THE HEARING ITSELF. SD/- SD/- (DR. S. T. M. PAVALAN) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER + <, MUMBAI; = DATED : 30.06.2014 # ROSHANI , SR. PS ! ' #$%& ' &$ # COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT 3. '' + >- ? @ / THE CIT(A) 4. '' + >- / CIT - CONCERNED 5. AB C'-D2 ' D20 + <, / DR, ITAT, MUMBAI 6. C 3E , # GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , + <, / ITAT, MUMBAI