NICKUNJ EXIMP ENTERPRISES P.LTD, MUMBAI V. ADDL CIT RG 1(2), MUMBAI

ITA 2298/MUM/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48375 (ITAT-MUMBAI)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Assessee Lawyers: RAKESH JOSHI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI N.V. VASUDEVAN (JM) AND SHRI PRAMOD KUM AR (AM) ITA NO. 2298/MUM/2011 ASSESSMENT YEAR-2007-08 M/S. NICKUNJ EXIMP ENTERPRISE PVT. LTD. 93, SRI JORAWAR BHAVAN, M.K. ROAD, MARINE LINES, MUMBAI-400 020 PAN-AABCN 0991K VS. THE ACIT, RANGE-1(12), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH JOSHI RESPONDENT BY: SHRI HARI GOVIND SINGH O R D E R PER PRAMOD KUMAR (AM) THIS APPEAL, FILED BY THE ASSESSEE, IS DIRECTED AG AINST THE LD. CIT(A)S ORDER DT. 2 ND FEBRUARY, 2011 IN THE MATTER OF ASSESSMENT U/S. 143(3) OF THE I.T. ACT, 1961 FOR THE ASSESSMENT YEA R 2007-08. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GRIEVANCE: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) HAS ERRED IN PASSING THE EX-PAR TE ORDER WITHOUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. IN SUPPORT OF THE ABOVE GRIEVANCE, IT IS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE IMPUGNED ORDER PA SSED BY THE LD. CIT(A) WAS AN EX-PARTE ORDER AND THAT WHEREAS, ACCO RDING TO THE LD. CIT(A), THERE WAS NO COMPLIANCE ON THE LAST DATE OF HEARING I.E. 27.1.2011, THE FACT IS THAT THE ASSESSEE HAS MOVED AN ADJOURNMENT PETITION ON 27.1.2011 PRAYING FOR A SHORT ADJOURNME NT AND STATING INTER ALIA AS FOLLOWS: ITA NO. 2298/MUM /2011 2 WITH REFERENCE TO THE CAPTIONED APPEAL WHICH HAS B EEN FIXED FOR HEARING TODAY, WE HAVE TO HUMBLY REQUEST YOUR H ONOUR TO KINDLY GRANT AN ADJOURNMENT OF ABOUT 3 WEEKS IN THE ABOVE MATTER. WE ARE SEEKING THIS ADJOURNMENT SINCE WE HAVE JUST BEEN RECENTLY APPOINTED IN THE SAID CASE TO APPEAR AND A RE IN THE PROCESS OF COLLECTING ALL DOCUMENTS AND DETAILS FRO M THE APPELLANT AND HENCE THE CASE WOULD NOT BE ABLE TO B E ATTENDED TO ON THE GIVEN DATE. HENCE, ON THE BASIS OF THE ABOVE FACTS, WE REQUEST YOUR HONOUR TO KINDLY GRANT AN ADJOURNMENT TO ANY DATE C ONVENIENT TO YOUR HONOUR AFTER 3 WEEKS, WHEN THE CASE SHALL B E DULY ATTENDED. 4. IT IS THUS SUBMITTED THAT THE LD. CIT(A) HAS ERR ED IN OBSERVING THAT THERE WAS NO COMPLIANCE IN THE NOTICE OF HEARING IS SUED BY THE LD. CIT(A). IT IS SUBMITTED THAT THERE WAS A CHANGE OF COUNSEL AND IT WAS ON ACCOUNT OF COUNSEL THAT AN ADJOURNMENT WAS SOUGHT F OR 3 WEEKS. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE HAD GENUINE AND BONAFIDE REASON FOR SEEKING ADJOURNMENT. IT IS THUS STATED THAT THE IMPUGNED EX PARTE ORDER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION ON MERIT AFTER GIVING REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT IN CASE THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A), THE ASSESSEE WILL FULLY CO-OPERATE FOR AN EXPEDITIOUS DISPOSAL OF THE REMANDED PROCEEDINGS. 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND SUBMITS THAT HE HAS NO OBJECTION TO THE MATTER BEING RESTOR ED TO THE FILE OF THE LD. CIT(A), THE FACT REMAINS THAT THE LD. CIT(A) HAS DI SPOSED OF ALL CONTENTIONS OF THE ASSESSEE, AS RAISED IN THE APPEA L BEFORE HIM BY WAY OF SPEAKING ORDER ON MERIT. HE THUS SUBMITS THAT NO IN TERFERENCE IN THE CONCLUSIONS ARRIVED AT BY THE LD. CIT(A) WAS WARRAN TED ON MERITS. ITA NO. 2298/MUM /2011 3 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND HAVI NG PERUSED THE MATERIAL ON RECORD, WE SEE SUBSTANCE IN THE PLEA OF THE ASSESSEE. WE HAVE NOTICED THAT THE ADJOURNMENT PETITION DT. 27.1 .2011 IS DULY ACKNOWLEDGED BY THE OFFICE OF THE LD. CIT(A) AND TH E LD. DR COULD NOT REFUTE THE SAID ACKNOWLEDGEMENT. IN THESE CIRCUMST ANCES, IN OUR CONSIDERED VIEW THE RIGHT COURSE OF ACTION WILL BE TO REMIT THE MATTER TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION DENOVO AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ALSO DI RECT THE ASSESSEE TO FULLY CO-OPERATE WITH THE LD. CIT(A) IN EXPEDITIOUS DISPOSAL OF THE REMANDED PROCEEDINGS AND NOT TO SEEK ANY ADJOURNME NT EXCEPT IN UNAVOIDABLE CIRCUMSTANCES AND NOT TO RESORT TO ANY DILATORY TACTICS. WITH THESE DIRECTIONS, THE MATTER IS RESTORED TO TH E FILE OF THE LD. CIT(A) IN THE TERMS INDICATED ABOVE. GROUND NO. 1 IS THUS AL LOWED FOR STATISTICAL PURPOSES. 7. IN VIEW OF THE FACT, THE MATTER HAS BEEN REMITTE D TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION AFTER GIVING YET ANOTHER OPPORTUNITY TO THE ASSESSEE ON MERITS, WE SEE NO NECESSITY TO DEAL WITH THE REMAINING GROUNDS, WHICH DEALS THE CONCLUSIONS ARRIVED AT BY THE LD. CIT(A) ON MERITS. IN THE PRESENT SITUATION, ALL THESE GRIEVAN CES ARE RENDERED ACADEMIC AND INFRUCTUOUS. 8. THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH APRIL, 2011. SD/- SD/- (N.V. VASUDEVAN) (PRAMOD KUJMAR) ACCOUNTANT MEMBER ACCO UNTANT MEMBER MUMBAI, DATED 7 TH APRIL, 2011 RJ ITA NO. 2298/MUM /2011 4 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI DATE INITIALS 1 DRAFT DICTATED ON: 7 .0 4 .2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 7 .0 4 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10. DATE OF DISPATCH OF ORDER: _________ ______