AMITY THERMOSETS (P) LIMITED, Mumbai V. ITO WARD 12(1)(2), Mumbai

ITA 2140/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5985 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MICHAEL JERALD
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBERAND SHR I N.K. PRADHAN ACCOUNTANT MEMBER ITA NO. 2140 /MUM. /201 9 ( ASSESSMENT YEAR : 20 1 3 14 ) AMITY THERMOSETS PVT. LTD. NO.204/2015, KHARADE APARTMENT 2 ND FLOOR, STATIN ROAD, GOREGAON (E) MUMBAI 400 063 PAN AABCA3840N . APPELLANT V/S INCOME TAX OFFICER WARD 12(1)(2), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : S HRI MICHAEL JERALD DATE OF HEARING 10.09.2020 DATE OF ORDER 17.09.2020 O R D E R PER SAKTIJIT DEY. J.M. TH E AFORESAID APPEAL HAS BEEN FILED BY T H E ASSESSEE CHALLENGING THE ORDER DATED 1 3 TH MARCH 2019, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 20 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2013 14 . 2. WHEN THE APPEAL WAS CALLED FOR HEARING IN VIRTUAL COURT , NO ONE APPEARED ON BEHALF OF THE RESPONDENT ASSESSEE TO REPRESENT THE CASE. 2 AMITY THERMOSETS PVT. LTD. THERE IS NO APPLICATION SEEKING ADJOURNMENT EITHER . CONSIDERING THE NATURE OF DISPUTE , WE PROCEED TO DISPOSE OFF THE APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE, THE ASSESSEE , A RESIDENT COMPANY , IS ENGAGED IN MANUFACTURE OF P HENOL F ORMALDEHYDE , M OULDING P O W DER AND P HENOL F ORMAL DEHYDE RESIN. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 23 RD SEPTEMBER 2013, DECLARING TOTAL INCOME OF ` 39,01,321, AFTER CLAIMING DEDUCTION UNDER SECTION 10A OF THE ACT. ASSESSMENT IN CASE OF TH E ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT ` 72,59,591, AFTER DISALLOWING CLAIM OF DEDUCTION UNDER SECTION 10A OF THE ACT. BEING AGGRIEVED WITH THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED AN APPEAL B EFORE THE FIRST APPELLATE AUTHORITY. 4. THE LEARNED COMMISSIONER (APPEALS) WHILE DECIDING THE APPEAL EX PARTE DISMISSED IT IN LIMINE ALLEGING THAT THE MEMORA NDUM OF APPEAL IN FORM NO.35, HAS NOT BEEN SIGNED AND VERIFIED EITHER BY THE MANAGING DIRECTOR OR BY ANY OTHER DIRECTOR. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THE BASIC GRIEVANCE OF THE ASSESSEE, AS EXPRESSED IN THE GROUNDS RAISED , IS AGAINST THE EX PARTE DISPOSAL OF 3 AMITY THERMOSETS PVT. LTD. THE APPEAL IN LIMINE. UNDISPUTEDLY, LEARNED COMMISSIONER (APPEALS) HAS DISMISSED THE APPEAL IN LIMINE DUE TO A TECHNICAL DEFECT OF NON SIGNING OF MEMORANDUM OF APPEAL BY THE MANAGING DIRECTOR OR ANY OTHER DIRECTOR. ON A CAREFUL SCRUT INY OF THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS ), IT IS NOT FORTHCOMING WHETHER ANY OPPORTUNITY OF HEARING WAS AFFORDED TO THE ASSESSEE BEFORE DISMISSING THE APPEAL EX PARTE , THAT TOO , IN LIMINE. AS COULD BE SEEN FROM THE GROUNDS OF APPEAL, IT IS THE CLAIM OF THE ASSESSEE THAT THE MEMORANDUM OF APPEAL IN FORM NO.35, WAS VERIFIED AND DIGITALLY SIGNED BY ONE OF THE DIRECTO RS. FROM THE COPY OF FORM NO.35 AVAILABLE ON RECORD, THE AFORESAID CLAIM OF THE ASSESSEE APPEARS TO BE CORRECT. EVEN , ACCEPTING LEAR NED COMMISSIONER (APPEALS)S VERSION THAT THE MEMORAND UM OF APPEAL WAS NOT SIGNED BY THE MANAGING DIRECTOR OR DIRECTOR, IT IS A MERE TECHNICAL DEFECT FOR WHICH AN OPPORTUNITY WAS REQUIRED TO BE GIVEN TO THE ASSESSEE TO RECTIFY THE DEFECT. PRIMA FACIE , IT APPEARS , NO SUCH OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY LEARNED COMMISSIONER (APPEALS). THEREFORE, IN OUR CONSIDERE D OPINION, THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) IS IN GROSS VIOLATION OF RULES AND NATURAL JUSTICE, HENCE , DESERVES TO BE SET ASIDE. ACCORDINGLY, WE DO SO. CONSEQUENTLY, THE MATTER IS RESTORED BACK TO THE FILE OF LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDICATION ON MERIT S AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN 4 AMITY THERMOSETS PVT. LTD. CASE, THERE IS ANY DEFECT IN FILING OF THE APPEAL BY THE ASSESSEE, LEARNED COMM ISSIONER (APPEALS) MUST AFFORD REASONABLE OPPORTUNITY TO THE ASSESSEE TO REMOVE SUCH DEFECT. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED THROUGH NOTICE BOARD UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 , ON 17.09.2020 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 17.09.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI