ASHTAVINAYAK STEEL P.LTD, MUMBAI V. CIT 6, MUMBAI

ITA 2760/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8047 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Keywords: Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.2760/MUM./2014 ( ASSESSMENT YEAR :2009 - 10 ) ASHTAVINAYAK STEEL P. LTD., 331 NAV VYPAR BHAVAN, 49 P.D MELLO RD. CARNAC BUNDER, MUMBAI 400 009 . APPELLANT V/S CIT 6 MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. S. PADMAJA DATE OF HEARING 01.03.2017 DATE OF ORDER 03.03.2017 O R D E R PER: SHAMIM YAHYA THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT PASSED U/S.263 OF THE INCOME TAX ACT, DATED 14.02.2014 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER: I) ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT HAS ERRED IN PASSING A REVISION ORDER U/S 263 OF I.T. ACT WITHOUT GIVING THE APPELLANT ANY OPPORTUNITY OF BEING HEARD AND ASHTAVINAYAK STEEL P. LTD. ITA NO.2760/MUM./2014 2 WITHOUT CONSIDERING THE RELEVANT FACTS. THE LEARNED CIT HAS FURTHER ERRED IN RELYING OIL FACTS. II) IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT HAS ERRED IN PASSING AN ORDER U/S 263 OF THE I.T. ACT WITHOUT THERE BEING IMPROPRIETY IN THE ASSESSMENT ORDER AND THE ASSESSMENT ORDER NOT BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. III) THE LEARNED CIT HAS FURTHER ERRED IN PASSING THE IMPUGNED REVISION ORDER WS 263 MERELY OIL BASIS OF DOUBT, SURMISES AND CONJECTURES ON A CHANGE OF OPINION IN RESPECT OF T'ACTS AND CI RCUMSTANCES OF THE CASE. IV) THE IMPUGNED REVISION ORDER PASSED U/S 263 IS PERVERSE AS RELEVANT FACTS HAVE NOT BEEN APPRECIATED BY THE CIT AND HE HAS RELIED OIL FACTS. V) THE IMPUGNED REVISION ORDER HAS BEEN PASSED OIL BASIS OF FLIMSY AND WHIMSICAL GROUNDS. IV) THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, DELETE, CHANGE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. WHICH ARE INDEPENDENT & WITHOUT PREJUDICE TO EACH OTHER. 3. I N THIS CASE THE LEARNED COMMISSIONER OF INCOME TAX OBSERVED CERTA IN MATTERS FOR WHICH NOTICE WAS ISSUED WITH ASSESSEE. ONE OF THE ISSUE RELATED TO DISCREPANCY IN CONFIRMATION OF BALANCE OF LOANS. DIFFERENCES WERE ALSO ASHTAVINAYAK STEEL P. LTD. ITA NO.2760/MUM./2014 3 NOTICED IN THE CLASSIFICATION THEREOF AND CERTAIN OTHER DISCREPANCIES WERE ALSO NOTED IN THE LOAN ACCOU NTS. IT WILL ALSO OBSERVED THAT ISSUES RELATING TO 40 A (2) ( B ) IN RESPECT OF ONE OF THE PARTIES WAS NOT EXAMINE D B Y THE ASSESSING OFFICER. IT WILL ALS O NOTED THAT THE PURCHASES REMAINED TO BE VERIFIED. IT WAS FURTHER NOTED THAT ISSUES RELATING TO VERIFICA TION OF SUNDRY CREDITORS, REDUCTION IN SHARE CAPITAL WERE ALSO NOT ATTENDED. SEVERAL OTHER DISCREPANCIES AND MATTERS WERE NOTED IN WHICH THE LEARNED COMMISSIONER OF INCOME TAX WAS OF THE OPINION THAT THE ASSESSING OFFICER HAS NOT EXAMINED HOWEVER L D. CIT - A NOTED THAT DESPITE SEVERAL NOTICES NOBODY ATTENDED. HENCE LEARNED COM MISSIONER OF INCOME TAX CONCLUDED AS UNDER; AS NO EXPLANATION HAS BEEN RECEIVED TO THE ISSUES REFERRED IN SHOW CAUSE NOTICE, THERE IS NO OTHER OPTION BUT TO ASSUME THAT ASSESSEE HAS NO THING TO SAY IN THIS REGARD. I AM CONSIDERED OPINION THAT THE ASSESSMENT ORDER, IN THE LIGHT OF THE FACTS/DEFICIENCIES POINTED OUT IN PARA (I TO X) ABOVE AND IN THE CONTEXT OF THE RATIO OF DECISIONS CITED ABOVE, IS ERRONEOUS AND PREJUDICIAL TO THE INTE RST OF THE REVENUE. I, THEREFORE, SET ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT WITH A DIRECTION TO THE AO TO REDO THE SAME AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE AO IS DIRECTED TO REFRAME TH E ASSESSMENT ORDER DENVO IN ACCORDANCE WITH THE PROVISIONS OF THE LAW AND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AFTER VERIFYING THE ISSUES RAISED ABOVE IN PARAS 2 (I TO X). 4. A GAINST ABOVE ORDER ASSESSEE HAS APPEALED BEFORE THE ITAT. WE HAVE HEARD THE LD. DR . IT IS NOTED THAT DESPITE NOTICES NOBODY IS APPEARING ON ASHTAVINAYAK STEEL P. LTD. ITA NO.2760/MUM./2014 4 BEHALF OF THE ASSESSEE. TODAY ALSO WHEN THE CASE WAS CALLED UP NOBODY APPEARED. HENCE WE ARE PROCEEDING TO ADJUDICATE THE ISSUE UPON HEARING THE LEARNED DEPARTMENT AL REPRESENTATIVE AND PERUSING THE RECORDS. 5. WE FIND THAT AT THE OUTSET ASSESSEE HAS RAISED THE GROUND THAT LD. CIT HAS PASSED THE ORDER WITHOUT GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. IN THIS REGARD WE FIND THAT THE LEARNED COMMISSIONER O F INCOME TAX IN HIS ORDER HAS DULY NOTED THAT ON SEVERAL OCCASION NOTICES WERE ISSUED BUT NOBODY ATTENDED. BEFORE US ALSO DESPITE SEVERAL NOTICES NOBODY HAS ATTENDED. HENCE WE DO NOT FIND ANY COGENCY IN THIS ASPECT OF ASSESSEE SUBMISSION THAT PROPER OPPORT UNITY OF BEING HEARD WAS NOT GRANTED. AS REGARDS THE MER ITS OF THE ORDER PASSED WE FIND THAT LEARNED COMMISSIONER OF INCOME TAX HAS RAISED RELEVANT ISSUES ON WHICH THE ASSESSING OFFICER SHOULD HAVE MADE ENQUIRIES, WHICH ARE NOT EMANATING FROM THE ASSESSMENT ORDER. HENCE IT WAS INCUMBENT UPON THE ASSESSEE TO PROVE THAT THE ASSESSING O FFICER HAS DULY EXAMINE D THESE ASPECTS. IN ABSENCE OF ANY RESPONSES FROM THE ASSESSEE IN OUR CONSIDERED OPINION THERE IS NO INFIRMITY IN THE DIRECTION OF LEARNED COMMISSIONER OF INCOME TAX TO THE ASSESSING O FFICER TO EXAMINE THE ISSUES DE NOVO. 6. ACCORDI NGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT. ASHTAVINAYAK STEEL P. LTD. ITA NO.2760/MUM./2014 5 HENCE WE UPHOLD THE SAME . I N THE RESULT THIS APPEAL BY ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.03.2017 SD/ - SD/ - RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 03.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI ASHTAVINAYAK STEEL P. LTD. ITA NO.2760/MUM./2014 6