ACIT 2(2)(2), MUMBAI V. PASHA FINANCE P.LTD, MUMBAI

ITA 2769/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9149 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2017
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2017
• Court: TRIBUNAL
• Assessee Lawyers: HEMALATHA
• Keywords: Opportunity of being heard
• Section: 14A

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.2729/MUM/2017 : ASST.YEAR 2011-2012 SHRI RAMNIWAS NATHMAL PHALOD B/703, SAISANKAR CHS LIMITED SON TROMBAY ROAD, DEONAR GOVANDI, MUMBAI 400 088 PAN : AFEPP7922B. / VS. DY.COMMISSIONER OF INCOME - TAX CIRCLE 6(3) MUMBAI. ( / APPELLANT) ( / RESPONDENT) APPELLANT BY : SHRI ASHISH KUMAR RESPONDENT BY : MS.HEMALATHA / DATE OF HEARING : 29.08.2017 / DATE OF PRONOUNCEMENT : 03.10.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 17.02.2014 AND PERTAINS TO ASSESSMENT YEAR 2011-2012. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-13 ['CIT(A)'], ON THE FACTS OF THE CASE AND IN LAW, HAS ERRED IN UPHOLDING THE DISALLOWANCE MADE ON ACCOUNT OF FOREIGN TRAVEL EXPENSES AMOUNTING TO RS. 3,60,469/-. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-13 ['CIT(A)'], ON THE FACTS OF THE CASE AND IN LAW, HAS ERRED IN UPHOLDING THE DISALLOWANCE MADE UNDER SECTION 14A AMOUNTING TO RS, 31,952/-. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-13 ['CIT(A)'], ON THE FACTS OF THE CASE AND IN LAW, HAS ERRED IN ITA NO.2729/MUM/2017. SHRI RAMNIWAS NATHMAL PHALOD. 2 UPHOLDING THE ADDITION OF RS. 10,00,000/- ON ACCOUNT OF ESTIMATED SCRAP SALE. 4. THE APPELLANT CRAVE LEAVES TO ADD, AMEND, ALTER, MODIFY AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT PRAYS THIS HON'BLE TRIBUNAL TO DELETE THE ADDITIONS MADE BY THE A.O. AND CONFIRMED BY THE LEARNED CIT (A) BY PASSING AN EX-PARTE ORDER WITHOUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD. 3. IN THIS CASE, IN THE ASSESSMENT ORDER THE ASSESSING OFFICER MADE AN ADDITION OF RS.13,92,421 AS UNDER:- FOREIGN TRAVELLING EXPENSES RS. 3,60,469 DISALLOWANCE U/S 14A RS. 31,952 SALE OF SCRAPE RS.10,00,000 ------------------ TOTAL RS.13,92,421 =========== 4. AGAINST THE ABOVE ORDER, ASSESSEE APPEALED BEFORE THE LEARNED CIT(A). LEARNED CIT(A) NOTED THAT THERE WAS NO REPRESENTATIVE BY THE ASSESSEE. HE PROCEEDED TO CONFIRM THE ORDER OF THE ASSESSING OFFICER. THE ORDER OF LEARNED CIT(A) REGARDING NON-AVAILABILITY OF ASSESSEE MAY BE GAINFULLY REFERRED AS UNDER:- NON-AVAILABILITY OF THE APPELLANT - THIS APPEAL WAS POSTED FOR HEARING ON 25TH NOVEMBER 2016 VIDE NOTICE DATED 7TH NOVEMBER 2016. IT WAS HOWEVER RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARK 'LEFT', A LETTER WAS THEN ISSUED TO THE AO ON 25TH NOVEMBER 2016 ENCLOSING A NOTICE DATED 23RD NOVEMBER 2016 WHEREBY THE APPEAL HAD BEEN FIXED FOR HEARING ON 13 TH DECEMBER 2016. THE AO WAS REQUESTED TO GET THE FRESH ITA NO.2729/MUM/2017. SHRI RAMNIWAS NATHMAL PHALOD. 3 NOTICE SERVED AND RETURN THE ACKNOWLEDGMENT TO THIS OFFICE AND ALSO INTIMATE THE CURRENT ADDRESS OF THE APPELLANT. HE WAS REQUESTED TO ENSURE SERVICE, IF REQUIRED BY AFFIXTURE. HE WAS ALSO INTIMATED THAT THE APPEAL SHALL BE DISPOSED OF ON MERITS IN CASE OF NON-SERVICE OF THE SAID NOTICE. THERE HAS BEEN NEITHER ANY REPLY FROM THE AO NOR ANY ATTENDANCE ON PART OF THE APPELLANT. IT IS HENCE CLEAR THAT NO USEFUL PURPOSE WOULD BE SERVED BY KEEPING THIS APPEAL PENDING, IT IS ACCORDINGLY TAKEN UP EX PARTE AND ON MERITS. 5. THEREAFTER LEARNED CIT(A) NARRATED THE A.OS CASE AND CONFIRMED THE ADDITION. 6. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE ITAT. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT PROPER NOTICE FOR HEARING HAS NOT BEEN RECEIVED FROM THE LEARNED CIT(A). HE SUBMITTED THAT ONE NOTICE WAS RECEIVED FROM THE CIT(A). BUT THE SAME ALSO INCLUDED A COPY OF DISPUTE RESOLUTION SCHEME. HENCE ASSESSEE WAS UNDER THE IMPRESSION THAT THE SAID NOTICE WAS ONLY AN INFORMATION FOR THE DISPUTE RESOLUTION SCHEME. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS EVIDENT FROM THE AFORESAID ORDER, LEARNED CIT(A) HAD DIRECTED THE A.O. TO SERVE NOTICE UPON THE ASSESSEE. BUT THERE IS CLEAR MENTION BY THE LEARNED CIT(A) THAT THE ASSESSING OFFICER HAS NOT RESPONDED. HENCE LEARNED COUNSEL PLEADED THAT THERE HAS BEEN LACK OF PROPER OPPORTUNITY TO THE ASSESSEE TO CANVASS THE APPEAL BEFORE THE LEARNED CIT(A). HENCE LEARNED COUNSEL PLEADED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PROPERLY CANVAS THE APPEAL BEFORE THE LEARNED CIT(A). 7. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. I FIND CONSIDERABLE COGENCY IN THE SUBMISSIONS OF THE LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AFTER GIVING THE ASSESSEE ITA NO.2729/MUM/2017. SHRI RAMNIWAS NATHMAL PHALOD. 4 PROPER OPPORTUNITY OF BEING HEARD. LEARNED COUNSEL OF THE ASSESSEE HAS ALSO UNDERTAKEN TO SUO MOTO APPEAR BEFORE THE LEARNED CIT(A) WITHIN TWO MONTHS OF THIS ORDER TO CANVAS THE APPEAL. 8. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 03 RD DAY OF OCTOBER, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 03 RD OCTOBER, 2017. DEVDAS* / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.