ENCEE DYING & PTG, WORKS P. LTD, MUMBAI V. ADDL CIT RG 9(1), MUMBAI

ITA 2365/MUM/2010

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5361 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: SANDEEP SHRIDHAR
• Keywords: Principle of natural justice; Corroborative evidences
• Section: 271E

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL F BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 2365/MUM/2010 (ASSESSMENT YEAR 2004-05 ) ENCEE DYING & PTG. WORKS PVT. LTD., PLOT NO. 25, CAMA INDUSTRIAL ESTATE, WALBHAT ROAD, GOREGOAN (EAST), MUMBAI-400053. PAN: AAACE6180Q VS. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE 9(1) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI SANDEEP SHRIDHAR (AR) RESPONDENT BY : SHRI RAJEEV GUBGOTRA (DR) DATE OF HEARING : 05.09.2018 DATE OF PRONOUNCEMEN T : 25.10.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT ER PAWAN SINGH, JUDICIAL MEMBER ; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER (APPEALS)-9, MUMBAI DATED 19.01.2009 FOR ASSESSMENT YEAR 2004-05. THE ASSESSE E HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (1) THE LEARNED COMMISSIONER (APPEALS) ERRED IN DISMISS ING THE APPEAL IN LIMINE AND ACCORDINGLY ERRED IN CONFIRMING THE PENA LTY UNDER SECTION 271E OF RS. 12,87,639/- IN CONTRAVENTION OF PROVISI ON OF SECTION 269T OF INCOME TAX ACT 1961. (2) THE LEARNED COMMISSIONER (APPEALS) ERRED IN DECIDIN G THE APPEAL EX PARTE DID NOT CONSIDERED THE EVIDENCE PLACED BEFORE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-9(1) MUMBAI AND RE CORDED BY HIM IN HIS ORDER LEVYING PENALTY OF RS. 1287639/-. (3) THE LEARNED COMMISSIONER (APPEALS) THEREFORE, ERRED IN HOLDING THAT NO SUPPORTING EVIDENCE WAS FILED. ITA NO. 2365/MUM/2010-ENCEE DYIN G & PTG. WORKS PVT. LTD. 2 (4) THE LEARNED COMMISSIONER (APPEALS) ERRED IN DISMISS ING MISCELLANEOUS APPLICATION FILED DATED 24 TH FEBRUARY 2009 FOR RECALL OF THE ORDER AND ADJUDICATION AFRESH ON MERITS. (5) THE APPELLANT SUBMITS THAT THE APPELLANT COULD NOT FILE THE APPEAL EARLIER AS THE MISCELLANEOUS APPLICATION DATED 19 TH FEBRUARY, 2009 IS DISPOSED OFF ONLY ON 1 ST JANUARY 2010. (6) THE APPELLANT SUBMITS THAT TECHNICAL DELAY IN FILIN G THE APPEAL THE CONDONED AND APPEAL BE ADMITTED AND HARD ACCORDINGL Y . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFI CER WHILE PASSING ASSESSMENT ORDER FOR ASSESSMENT YEAR 2004-05 NOTED THAT THE ASSESSEE HAS MADE PAYMENT OF LOAN TO VARIOUS PARTIES OTHERWI SE THEN BY CROSS CHEQUE, THEREBY VIOLATED THE PROVISIONS OF SECTION 269TOF INCOME TAX ACT (THE ACT). THE ASSESSING OFFICER REFERRED THE CASE TO THE ADDITIONAL COMMISSIONER OF INCOME TAX ACT (ADD. CIT) FOR NECES SARY ACTION. THE ADD.CIT AFTER GRANTING OPPORTUNITY OF HEARING TO TH E ASSESSEE LEVIED THE PENALTY OF RS. 12,87,639/- FOR CONTRAVENTION OF PRO VISION OF SECTION 269T OF THE ACT VIDE ORDER DATED 10 TH MARCH 2008. ON APPEAL BEFORE THE LD. COMMISSIONER (APPEALS) THE ACTION OF ASSESSING OFFI CER WAS CONFIRMED. THE LEARNED COMMISSIONER (APPEALS) DISMISSED THE AP PEAL AS EX-PARTE. THE LD. COMMISSIONER (APPEALS) DECIDED THE APPEAL O N THE BASIS OF MATERIAL AVAILABLE ON RECORD VIDE IMPUGNED ORDER DA TED 19 TH JANUARY 2009. THEREAFTER, THE ASSESSEE FILED MISCELLANEOUS APPLICATION FOR RECALLING THE EX-PARTE ORDER BEFORE LEARNED COMMISS IONER (APPEALS). THE MISCELLANEOUS APPLICATION OF THE ASSESSEE WAS ALSO DISMISSED BY LD. ITA NO. 2365/MUM/2010-ENCEE DYIN G & PTG. WORKS PVT. LTD. 3 COMMISSIONER (APPEALS) VIDE ORDER DATED 1 ST DECEMBER 2009, HOLDING THAT THE ASSESSEE IS SEEKING THE REVIEW OF THE ORDE R. THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF LD. COMMISSIONER (APPEALS ) ON THE ORDER ON MISCELLANEOUS APPLICATION AS WELL AS IN DISMISSING THE APPEAL EX-PARTE FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE SUBMISSION OF AUTHORISED REPRESEN TATIVE (AR) OF THE ASSESSEE AND DEPARTMENTAL REPRESENTATIVE (DR) FOR R EVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE PERUSAL OF RE CORD REVEALS THAT, EVEN THIS APPEAL WAS DISMISSED TWICE; HOWEVER, ON FILING MISCELLANEOUS APPLICATION THE ORDER WAS RECALLED. THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE LD. COMMISSIONER (APPEALS) PASSED THE ORDER EX-PARTE WITHOUT GIVING FAIR AND PROPER OPPORTUNITY TO THE A SSESSEE. THE LEARNED AR FURTHER SUBMITS THAT ASSESSEE HAS RAISED SPECIFI C GROUNDS OF APPEAL IN GROUND NO. 1 & 2. THE LEARNED AR FURTHER SUBMITS TH AT THE ASSESSEE HAS FURNISHED SUFFICIENT EVIDENCE AND SHOWN SUFFICIENT CAUSE IN MAKING PAYMENTS OTHERWISE THEN CROSS CHEQUES. THEREFORE, N O PENALTY ORDER WAS LEVIED AGAINST THE ASSESSEE. 4. ON THE OTHER HAND, THE LEARNED DR FOR THE REVENUE S UPPORTED THE ORDER OF LOWER AUTHORITIES. THE LEARNED DR SUBMITS THAT THE ASSESSEE IS MOST NEGLIGENT IN PROPER PERUSING THE CASE BEFORE LD. CO MMISSIONER (APPEALS). THE LD. COMMISSIONER (APPEALS) PASSED THE ORDER AFT ER GIVING SUFFICIENT OPPORTUNITY, WHEN THE ASSESSEE FAILED TO APPEAR THE ORDER WAS PASSED ON ITA NO. 2365/MUM/2010-ENCEE DYIN G & PTG. WORKS PVT. LTD. 4 THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE M ISCELLANEOUS APPLICATION THESE ASSESSEE FAILED TO BRING OUT ANY MISTAKE APPA RENT ON THE RECORD. AS THERE WAS NO MISTAKE APPARENT IN THE ORDER, THEREFO RE THE APPLICATION OF ASSESSEE WAS DISMISSED. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE AND LD. DR FOR THE REVENUE AND PERUSED THE RECORD. THE PERU SAL OF IMPUGNED ORDER DATED 9 TH JANUARY 2009 REVEALS THAT THE APPEAL WAS FIXED FOR HEARING ON 23 RD SEPTEMBER 2008, 15 TH DECEMBER 2008 AND FINALLY ON 15 TH JANUARY 2009. THE LEARNED COMMISSIONER (APPEALS) PASSED THE ORDER ON 19.01.2009. THE LD. COMMISSIONER (APPEALS) WHILE PA SSING THE IMPUGNED ORDER NOTED THAT THERE IS NO COMPLIANCE FROM THE AS SESSEE. WE HAVE SEEN THAT THE LD. COMMISSIONER (APPEALS) FURTHER NOTED T HAT ASSESSEE SOUGHT ADJOURNMENT ON 13 TH SEPTEMBER 2008 AND AGAIN ON 9 TH DECEMBER 2008. WE HAVE NOTED THAT THE LEARNED COMMISSIONER (APPEAL S) BEFORE PROCEEDING EX-PARTE HAS NOT RECORDED HIS SATISFACTI ON, IF NOTICE FOR THE HEARING FIXED ON 15 TH JANUARY 2009 WAS SERVED UPON THE ASSESSEE. THERE IS NO SATISFACTION RECORDED IN THE IMPUGNED ORDER T HAT THE ASSESSEE HAS NOT APPEARED DESPITE THE SERVICE OF NOTICE OF HEARING. THERE IS NO SATISFACTION OF LEARNED COMMISSIONER (APPEALS) THAT THE NOTICE W AS SERVED UPON THE ASSESSEE OR NOT. THE LEARNED COMMISSIONER (APPEALS) PRESUMED THAT NOTICE FOR THE HEARING WAS SERVED UPON THE ASSESSEE . ITA NO. 2365/MUM/2010-ENCEE DYIN G & PTG. WORKS PVT. LTD. 5 6. IN PARA-4 OF THE IMPUGNED ORDER DATED 19.01.2009, T HE LD. COMMISSIONER (APPEALS) RECORDED THAT THE APPEAL IS DECIDED ON TH E BASIS OF MATERIAL ON RECORD. IN THE IMPUGNED ORDER THERE IS NO REFERENCE AS TO WHAT MATERIAL WAS CONSIDERED BY LEARNED COMMISSIONER (APPEALS) WH ILE PASSING THE IMPUGNED ORDER. FACT REMAINS THE SAME THAT THE IMPU GNED ORDER WAS PASSED EX PARTE. THE APPLICATION FILED BY ASSESSEE FOR RECALLING OF THE ORDER WAS ALSO DISMISSED HOLDING THAT THERE IS NO M ISTAKE APPARENT IN THE ORDER WHICH REQUIRE RECTIFICATION AND THAT THE ASSE SSEE WAS SEEKING REVIEW OF THE ORDER. 7. THE PRINCIPAL OF AUDI ALTERAM PETREM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE BASIC CONCEPT IN THIS PRINCIPAL IS THA T NO ONE SHOULD BE CONDEMNED UNHEARD. THIS PRINCIPAL IS SINE A QUA NON IN EVERY JUDICIAL AND QUASI JUDICIAL PROCEEDINGS. ADMITTEDLY THE IMPUGNED ORDER ON APPEAL OF THE ASSESSEE WAS PASSED WITHOUT HEARING OF THE ASSE SSEE. THEREFORE, KEEPING IN VIEW THE PRINCIPAL AUDI ALTERAM PETREM THE GROUND NO. &2 RAISED BY THE ASSESSEE ARE ALLOWED; RESULTANTLY THE APPEAL IS RESTORED TO THE FILE OF LEARNED COMMISSIONER (APPEAL) TO DECIDE THE APPEAL ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THE LD. COMMIS SIONER (APPEALS) SHALL GRANT FAIR OPPORTUNITY TO THE ASSESSEE BEFORE DECIDING THE APPEAL. THE ASSESSEE IS DIRECTED TO FULLY CO-OPERATE AND PR OVIDE ALL EVIDENCE AND INFORMATION TO THE LD COMMISSIONER (APPEALS) AND NO T TO SEEK ITA NO. 2365/MUM/2010-ENCEE DYIN G & PTG. WORKS PVT. LTD. 6 ADJOURNMENT WITHOUT VALID REASONS. IN THE APPEAL O F THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25/10/2018. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 25.10.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR F BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI