SCHREIBER DYNAMIX DAIRIES LTD, MUMBAI V. ITO (TDS)(OSD) 1(3), MUMBAI

ITA 2441/MUM/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5544 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 10-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Assessee Lawyers: ADITI BHANSALI
• Keywords: Principle of natural justice
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2441/M/2014 ASSESSMENT YEAR: 2006-07 M/S. SCHREIBER DYNAMIX DIARIES LTD., (FORMERLY KNOWN AS DYNAMIX DIARY INDUSTRIES LTD.), A-306/307, DYNASTY BUSINESS PARK, 58 ANDHERI KURLA ROAD, ANDHERI (EAST), MUMBAI 400 059 PAN: AAACD3743J/TAN MUMD09903F VS. THE INCOME TAX OFFICER (TDS) (OSD)-1(3), K.G. MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI 400 002 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ADITI BHANSALI, A.R. REVENUE BY : SHRI V. JUSTIN, D.R. DATE OF HEARING : 28.06.2018 DATE OF PRONOUNCEMENT : 24.07.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 19.02.2014 OF THE COMMISSIONE R OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCE D AS UNDER: ITA NO.2441/M/2014 M/S. SCHREIBER DYNAMIX DIARIES LTD. 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORD ER DATED 28.03.2011 PASSED UNDER SECTION 201(1)! 201(1A) OF THE ACT WITHOUT PR OVIDING AN OPPORTUNITY FOR BEING HEARD AND HENCE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ORDER SHOULD BE HELD AS ILLEGAL AND BAD-IN-LAW AND SHOULD BE QUASHED ACCORDINGLY. CONSEQUENTLY, THE DEMAND OF RS.39,33,034/- RAISED BY PASSING ORDER U/S.201(1)/201(1A) OF THE ACT SHOULD BE DELETED. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATE , FOLLOWING ARE THE GROUNDS OF APPEAL 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE DEMAND OF RS.38,14,190/- RAISED ON ACCOUNT OF PROCESSING E-TD S RETURNS (FORM NO.260 AND 24Q) ON SYSTEMS FOR THE QUARTER ENDED 30.03.200 5, IS BAD IN LAW, AS THE APPELLANT HAS NOT BEEN PROVIDED WITH THE ANNEXURE' FORMING PART OF THE ORDER GIVING THE DETAILS OF THE DEFAULTS. CONSEQUENTLY, T HE DEMAND OF RS.38.14.190/- RAISED U/S.201(1)/ 201(1A) OF THE ACT SHOULD BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE NOT CONFIRMED THE DEMAND OF RS.1,18,844/- RAISED IN THE ORDER PASSED U/S.201 (1)/201(1A) OF THE ACT. 3. WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL NO. 2 AN D 3 HEREINABOVE AND IN THE ALTERNATE, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT SHOULD NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT FOR THE AMOUNT OF TAX WITHIN THE MEANING OF SECTION 201(1) OF THE ACT AS THE RESPECTIVE DEDUCTEES TO WHOM THE APPELLANT HAS MADE PAYMENTS, HAVE PAID THE INCOME-TAX ON THEIR TOTAL INCOME. CONSEQUENTLY, THE DEMAND OF RS.30,97,810/- RAISED U/S.201(1) OF THE ACT SHOULD BE DELETED. 4. IT IS HUMBLY PRAYED THAT IT SHOULD BE HELD THAT THE RELIEFS AS PRAYED FOR HEREINABOVE AND/OR SUCH OTHER RELIEFS AS MAY BE JUS TIFIED BY THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS MAY MEET THE ENDS OF JUSTICE, SHOULD BE GRANTED. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.1 WHICH IS THE MAIN GROUND OF APPEAL IS AGAINST THE CONFIRMATI ON OF ORDER DATED 28.03.2011 PASSED UNDER SECTION 201(1)/201(1A ) OF THE ACT WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEAR D AND ITA NO.2441/M/2014 M/S. SCHREIBER DYNAMIX DIARIES LTD. 3 HENCE THE LD. A.R. PRAYED THAT THE SAID ORDER BE HEL D AS ILLEGAL AND BAD IN LAW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE OBSERVE FRO M THE RECORD BEFORE US THAT THE ISSUE INVOLVED IN THE PRE SENT APPEAL IS QUA THE DEMAND RAISED BY THE AO(TDS) ON ACCOUNT OF SHORT DEDUCTION OF TAX. THE MAIN CONTENTION OF THE LD. A .R. IS THAT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE BY THE LD. CIT(A) AND THE ORDER WAS PASSED WITHOUT HEARING THE ASSESS EE THEREBY CAUSING MISCARRIAGE OF JUSTICE AND PRINCIP LE OF NATURAL JUSTICE AND REQUESTED THAT THE ISSUE BE RESTORED T O THE FILE OF THE LD. CIT(A) SO THAT ORDER COULD BE PASSED AFTER H EARING THE ASSESSEE ON MERITS. 5. THE LD. D.R. AGREED TO THE FAIR PROPOSITION OF THE LD. A.R. THAT THE ISSUE BE RESTORED NOT TO LD. CIT(A) BUT TO THE AO SO THAT ALL THE RELEVANT DETAILS COULD BE VERIFIED AND MATTER BE DECIDED ACCORDINGLY. 6. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VI EW THAT THE ENDS OF JUSTICE WOULD BE MET IF THE ISSUE IS RE STORED TO THE FILE OF AO SO THAT THE SAME COULD BE DISPOSED OFF O N MERIT AFTER PROVIDING A REASONABLE OPPORTUNITY OF HEARING TO TH E ASSESSEE AS NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. ACC ORDINGLY, WE RESTORE THE ISSUE BACK TO THE FILE OF THE AO WIT H A DIRECTION TO DECIDE THE SAME IN DENOVO AFTER HEARING THE ASSE SSEE. ITA NO.2441/M/2014 M/S. SCHREIBER DYNAMIX DIARIES LTD. 4 7. APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.07.2018. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24.07.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.