SOLAR PACKAGING P.LTD, MUMBAI V. ACIT CEN CIR 41, MUMBAI

ITA 2207/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6685 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 19-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Assessee Lawyers: S ATISH CHANDAK
• Keywords: Opportunity of being heard; Capital expenditure

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO.2207/MUM/2013 : ASST.YEAR 2002-03 ITA NO.2208/MUM/2013: ASSTT.YEAR 2007-08. M/S. SOLAR PACKAGING PVT.TD. 301/302/202 ASHFORD CHAMBERS, LADY JAMSHEDJI ROAD, MAHIM (WEST), MUMBAI 400 016. THE ACIT, CEN. CIR. 41, MUMBAI. ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * + * + * + * + /APPELLANT BY : SHRI SATISH CHANDAK ()$% * + * + * + * + /RESPONDENT BY : SHRI KISHAN VYAS ' * ,-' / / / / DATE OF HEARING : 19.06.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 19.06.2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THESE APPEALS ARE FILED BY THE ASSESSEE AND THEY A RE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A) DATED 31/12/20 12 FOR ASSESSMENT YEAR 2002- 03 AND 2007-08. GROUNDS OF APPEAL READ AS UNDER: GROUNDS OF APPEAL FOR A.Y. 2002-03: THE FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO ONE ANOTHER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LEARNED CIT(A) ERRED IN PASSING AN EX-PARTE ORDER WITHOUT P ROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD DESPITE THE FACT THAT AN APPLICATION FO R ADJOURNMENT OF HEARING WAS FILED ON 19/12/20 12 WHICH WAS NOT REFUSED BY THE LD. CIT (A ). 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPEL1ANTS CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE LD. A.OS ACTION OF M AKING ADDITION OF RS. 47,25,000/- ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN LAND. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LD. CIT (A) ERRED IN CONFIRMING THE LD. A.O.S ACTION OF CHARGI NG INTEREST OF RS. 2,95,909 U/S 234 F) OF THE INCOME TAX ACT, 1961. 4. THE APPELLANT CRAVES LEAVES TO ADD, TO AMEND, AL TER, MODIFY AND / OR WITHDRAW ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, EACH OF WHIC H ARE WITHOUT PREJUDICE TO ONE ANOTHER. ITA NO.2207/MUM/2013 : ASST.YEAR 2002-03 ITA NO.2208/MUM/2013: ASSTT.YEAR 2007-08. 2 THE APPELLANT PRAYS THIS HONBLE TRIBUNAL TO DELETE THE ADDITIONS/DISALLOWANCES MADE BY THE LD. AO AND CONFIRMED BY THE CIT(A). GROUNDS OF APPEAL FOR A.Y. 2007-08: THE FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUD ICE TO ONE ANOTHER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LEARNED CIT(A) ERRED IN PASSING AN EX-PARTE ORDER WITHOUT P ROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD DESPITE THE FACT THAT AN APPLICATION FO R ADJOURNMENT WAS FILED ON 19/12/2013 WHICH WAS NOT REFUSED BY THE LD. CIT (A) . 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LEARNED CIT (A) ERRED IN CONFIRMING THE LD. A.O.S ACTION OF HOL DING THE RETRENCHMENT COMPENSATION AS A CAPITAL EXPENDITURE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE LD. A.OS ACTION OF DISALLOWING A SUM OF RS. 16,37,771/- CLAIMED BY THE APPELLANT ON ACCOUNT OF RETRENCHMENT COMPENSATION. 4. THE APPELLANT CRAVES LEAVES TO ADD, TO AMEND, AL TER, MODIFY AND / OR WITHDRAW ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, EACH OF WHIC H ARE WITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT PRAYS THIS HONBLE TRIBUNAL TO DELETE THE ADDITIONS/DISALLOWANCES MADE BY THE LD.AO AND CONFIRMED BY THE CIT(A). 2. BOTH THE ABOVE APPEALS WERE DISPOSED OF BY WAY O F AN EX-PARTE ORDER AS ASSESSEE DID NOT APPEAR ON SEVERAL DATED GIVEN FOR HEARING OF THE APPEALS. 3. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL, IT IS THE CASE OF THE ASSESSEE THAT ON 19/12/2012, WHICH WAS THE LAST DATE FIXED FOR H EARING, THE ASSESSEE HAD FILED AN APPLICATION FOR ADJOURNMENT AND WITHOUT CONSIDERIN G THE SAID APPLICATION LD. CIT(A) HAS PROCEEDED TO DECIDE THE APPEAL BY WAY OF AN EX -PARTE ORDER. 4. COPY OF APPLICATION FILED BEFORE LD. CIT(A) FOR ADJOURNMENT OF APPEALS WAS ALSO FIELD BEFORE US, THE CONTENTS OF WHICH READ AS UNDE R: TO, 19.12.2012 THE COMMISSIONER OF INCOME TAX (APPEALS) -38, AYKAR BHAWAN, M.K. ROAD, MUMBAI 400 020. SIR, REG: SOLAR PACKAGING PVT. LTD. A.Y.: 2002-03 & 2007-08 ITA NO.2207/MUM/2013 : ASST.YEAR 2002-03 ITA NO.2208/MUM/2013: ASSTT.YEAR 2007-08. 3 SUB.: APPLICATION FOR ADJOURNMENT OF HEARING FIXED FOR TODAY WITH REFERENCE TO THE ABOVE, WE BEG TO STATE THAT T HE HEARING OF THE ABOVE APPEAL IS FIXED BEFORE YOUR HONOUR TODAY. IN THIS RESPECT WE BEG TO STATE THAT THE WE HAVE NOT YET RECEIVED CERTAIN DETAILS FROM THE CLIENT WHICH ARE ESSENTIAL TO PURSUE THE HEARING IN VIEW OF THE ABOVE WE REQUEST YOUR HONOUR TO ADJO URN THE HEARING FIXED FOR TODAY AND REFIX THE SAME AFTER SOME TIME AND OBLIGE. YOUR HONOURS KIND CO-OPERATION IN THE ABOVE MATTER WILL BE HIGHLY APPRECIATED. THANKING YOU, YOURS FAITHFULLY, FOR KAILASH CHAND JAIN & CO. CHARTERED ACCOUNTANTS THE AFOREMENTIONED APPLICATION IS DULY STAMPED BY THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS)-38. THUS, IT IS THE CASE O F THE ASSESSEE THAT MATTER SHOULD BE SET ASIDE TO THE FILE OF LD. CIT(A) WITH A DIREC TION TO RE-ADJUDICATE THE APPEAL AFTER PROVIDING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 5. ON THE OTHER HAND, IT IS THE CASE OF LD.DR THAT LD. CIT(A) HAS PROVIDED VARIOUS OPPORTUNITIES TO THE ASSESSEE AND ASSESSEE HAS FAIL ED TO AVAIL THE SAME, THEREFORE, LD. CIT(A) WAS RIGHT IN DISPOSING OF THE APPEAL BY WAY OF EX-PARTE ORDER. 6. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. WHAT IS IMPORTANT FOR THE CASE IS THAT WHETHER ON THE DATE WHEN LD. CIT(A) PROCEEDED TO DECIDE THE APPEAL FILED BY THE ASSESSEE, WHETHER THERE IS DEFAULT ON THE PART OF THE ASSESSEE FOR NON-REPRESENTATION. ACCORDING TO THE ADJOURNMENT APPLICATION ASSESSEE HAS SOUGHT ADJOURNMENT IN RES PECT OF BOTH THE APPEALS. THEREFORE, IN THE INTEREST OF JUSTICE WE ARE OF TH E OPINION THAT THE ASSESSEE DESERVES TO BE HEARD BY LD. CIT(A). THEREFORE, WE SET ASIDE BOTH THE IMPUGNED ORDERS PASSED BY LD. CIT(A) AND RESTORE THESE APPEALS TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE- ADJUDICATE THE SAME AFTER GIVING THE ASSESSEE A RE ASONABLE OPPORTUNITY OF HEARING. TO ENSURE COMPLIANCE BY THE ASSESSEE BEFORE LD. CIT (A) WE DIRECT THE ASSESSEE TO APPEAR BEFORE LD. CIT(A) ON 12/8/2014. THE DATE WA S DULY NOTED BY LD. AR. 7. SINCE WE HAVE SET ASIDE THE IMPUGNED ASSESSMENT ORDER AND RESTORED THE APPEALS TO THE FILE OF LD. CIT(A), WE DO NOT EXPRES S ANY OPINION ON THE MERITS OF THE ADDITIONS WHICH ARE TO BE RE-ADJUDICATED BY LD. CIT(A) AS PER DIRECTIONS GIVEN ABOVE. ITA NO.2207/MUM/2013 : ASST.YEAR 2002-03 ITA NO.2208/MUM/2013: ASSTT.YEAR 2007-08. 4 8. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH JUNE, 2014. 1 * ./0 2'3 19 /06/2014 / * : SD/- SD/- (RAJENDRA) (I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 19 TH JUNE, 2014. VM. 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. =() / THE CIT, MUMBAI. 4. = / CIT(A)-13, MUMBAI 5. ;@: (,' , , / DR, ITAT, MUMBAI 6. :A B / GUARD FILE. 1' 1' 1' 1' / BY ORDER, );, (, //TRUE COPY// C CC C/ // /D D D D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI