ABC EXIM, MUMBAI V. ITO 14(2)4, MUMBAI

ITA 2390/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71274 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-09-2013
• Assessment Year: 2000-2001
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M M MEHTA
• Keywords: Opportunity of being heard; Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI . . , , BEFORE SHRI B. R. MITTAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NOS. 2390 & 2391/MUM/2012 ( / ASSESSMENT YEARS: 2000-01 & 2003-04) ABC EXIM 3, KUNTAL, MODI INDUSTRIAL ESTATE, L. B. S. MARG, GHATKOPAR (W), MUMBAI-400 086 / VS. INCOME TAX OFFICER 14(2)-4, 3 RD FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400 021 ! ./' ./PAN/GIR NO. AAEFA 1544 R ( !# /APPELLANT ) : ( $!# / RESPONDENT ) !# % / APPELLANT BY : SHRI M. M. MEHTA $!# & % / RESPONDENT BY : SHRI P. K. SINGH ' ()* & + / DATE OF HEARING : 26.09.2013 ,-. & + / DATE OF PRONOUNCEMENT : 26.09.2013 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF TWO APPEALS BY THE ASSESSEE AGITAT ING THE SEPARATE ORDERS BY THE COMMISSIONER OF INCOME TAX (APPEALS)-25, MUMBAI (C IT(A) FOR SHORT) IN ITS CASE FOR TWO YEARS, I.E., FOR ASSESSMENT YEARS (A.YS.) 2000- 01 & 2003-04, VIDE ORDERS DATED 10.01.2012 AND 11.01.2012 RESPECTIVELY. BOTH THE AP PEALS RAISING COMMON ISSUES, WERE HEARD TOGETHER, AND ARE BEING DISPOSED OF VIDE A CO MMON, CONSOLIDATED ORDER. 2 ITA NOS. 2390 & 2391/MUM/2012 (A.YS. 00-01 & 03-04) ABC EXIM VS. ITO 2.1 OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE ASSESSEE, IT WAS EXPLAINED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THE IMPUGNED ORDERS ARE EX PARTE ORDERS, PASSED IN VIEW OF THE NON-REPRESENTATION B Y THE ASSESSEE DESPITE EFFORTS BY THE REVENUE TO SERVE THE NOTICES OF HEARING ON T HE ASSESSEE. THERE WAS, IN FACT, NO NEGLIGENCE OR LACK OF BONA FIDES ON THE PART OF THE ASSESSEE, AS INFERRED BY THE RE VENUE, AND THE ASSESSING OFFICER (A.O.) HAD BEEN DULY COMM UNICATED THE CHANGE OF ADDRESS AS FAR BACK IN JANUARY, 2008 . HOWEVER, AS IT APPEARS, THE DEPARTMENT DID NOT UP DATE ITS RECORDS QUA THE SAID CHANGE. THIS RESULTED IN NON-SERVICE OF T HE NOTICES, AND WHICH LED THE LD. CIT(A) TO INFER NON-EARNESTNESS ON THE PART OF THE ASSESSEE IN PROSECUTING ITS INSTANT APPEALS, DISMISSING THE SAME IN LIMINE . IN FACT, THE ASSESSEE HAS A SOUND CASE ON MERITS; ITS CLAIM FOR BOTH THE YEARS BEING COVERED BY THE A MENDMENT TO SECTION 80-HHC BY THE TAXATION LAWS (AMENDMENT) ACT, 2005 W.R.E.F. 01.04. 1998. IT WAS RATHER INCUMBENT ON THE LD. CIT(A) TO HAVE PASSED A REASONED ORDER ON M ERITS, I.E., AS CONTEMPLATED U/S.250(6) OF THE ACT. 2.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) COULD NOT CONTROVERT ANY OF THE SPECIFIC ARGUMENTS RAISED BY THE LD. AR BEFORE US. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE IMPUGNED ORDERS HAVE BEEN PASSED EX PARTE , DISMISSING THE ASSESSEES APPEALS IN LIMINE . THE ASSESSEES COMMUNICATION DATED 05.01.2008 TO THE A. O., WHICH IS THROUGH ITS COUNSEL, INTIMATING THE CHANGE OF ADDRESS TO ITS PRESENT ADD RESS IS PLACED AT PAGE 1 OF THE SEPARATE PAPER BOOKS (PBS) FOR BOTH THE YEARS. THE SAME IS D ULY RECEIPTED BY THE CONCERNED OFFICE ON 09.01.2008. AS SUCH, THE ASSESSEES PLEA AS RAIS ED PER ITS GROUND NO.2, SO THAT NO LACK OF EARNESTNESS ON ITS PART COULD UNDER THE CIRCUMST ANCES BE INFERRED AND, ACCORDINGLY, AN EX PARTE ORDER PASSED, MERITS ACCEPTANCE. FURTHER, IN OUR V IEW THE LD. CIT(A) OUGHT TO HAVE EXAMINED THE ASSESSEES CASE ON MERITS INASMUC H AS THE ISSUE STANDS DECIDED BY HIM MUCH AFTER THE RETROSPECTIVE AMENDMENT TO SECTION 8 0-HHC, CLEARLY IMPACTING THE ISSUE UNDER REFERENCE. 3 ITA NOS. 2390 & 2391/MUM/2012 (A.YS. 00-01 & 03-04) ABC EXIM VS. ITO UNDER THE GIVEN FACTS AND CIRCUMSTANCES, WE THEREFO RE ONLY CONSIDER IT FIT AND PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR A DECISION AFRESH ON MERITS AS PER LAW, BY ISSUING DE FINITE FINDINGS OF FACT, AND AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD . WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D IN THE AFORE-SAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 26, 2013 SD/- SD/- (B. R. MITTAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' * MUMBAI; 0( DATED : 26.09.2013 ).(../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. ' 1 ( ) / THE CIT(A) 4. ' 1 / CIT - CONCERNED 5. 4)56 $ (78 , + 78. , ' * / DR, ITAT, MUMBAI 6. 69: ;* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' * / ITAT, MUMBAI