PATHIK TRADES P.LTD, MUMBAI V. ITO WD 8(2)(4), MUMBAI

ITA 2778/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3728 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHA KATYAL NARAN G
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JM AND SHRI SANJAY ARORA, AM ./ I.T.A. NO. 2778/MUM/2013 ( / ASSESSMENT YEAR : 20 04 - 05 ) M/S PATHAK TRADERS PVT.LTD., BUNGLOW NO.4, KIA PARK, PRATHMESH COMPLEX, VEERA DESAI ROAD, ANDHERI (W), MUMBAI - 400053 / VS. INCOME TAX OFFICER, WARD 8(2)(4), MUMBAI. ./ T AN : AACCPO 8 8 3 B F / ASSESSEE BY NONE / REVENUE BY MS.RADHA KATYAL NARANG / DATE OF HEARING : 04/07/2016 / DATE OF PRONOUNCEMENT : 03 /0 8 /2016 / O R D E R PER BENCH: T HIS IS AN AP PEAL BY THE ASSESSEE CHALLENGING THE ORDER DATED 15.1.2013 PASSED BY THE CIT(A) - 17 IN APPEAL NO. CIT(A) - 17/IT - 33/2011 - 12. THE ASSESSMENT WAS COMPLETED BY THE ITO WARD 8(2)(4) MUMBAI , U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) VIDE ORDER DATED 22/12/2006 FOR AY 2004 - 05. THE PENALTY UNDER DISPUTE WAS LEVIED BY ITO WARD8(2)(4) MUMBAI, U/S 271(1)(C) OF THE ACT VIDE HIS ORDER DT. 25/03/2011. ITA NO. 2778 / MUM/20 1 3 2 2 . ONLY GROUND TAKEN BY THE ASSESSEE IS AS UNDER: 1. THE AO AND THE LEARNED CIT (A) HA VE ERRED IN FACT AND IN LAW BY LEVYING THE PENALTY OF RS.25,73,596/ - U/S 271 3 . NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED WITH IN THE ABSENCE OF THE ASSESSEE, WE ARE DOING SO. 4 . HEARD THE LD.DR AND PERUSED THE MATERIAL AVAILABLE BEFORE US ON RECORD INCLUDING THE ORDERS OF AUTHORITIES BELOW. IT HAS C OME TO OUR NOTICE THAT THE LD.CIT(A) HAS NOTED DOWN THAT DURING THE PROCEEDINGS , THE PROCEEDINGS THAT THE ASSESSEE WAS NON - CO - OPERATIVE IN PR OSECUTING BEFORE HIM AND NO EVIDENCE WAS FORTHCOMING FROM THE ASSESSEE TO INTERFERE WITH THE ORDER PASSED BY THE AO. WHILE UPHOLDING THE PENALTY ORDER, THE LD.CIT(A) RELIED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF ASHWINBHAI B POKIYA V/S ACIT IN ITA NO.472 OF 2011 AND ACCORDINGLY, HE DISMISSED THE APPEAL EX - PARTE. 5 . IT COULD BE SEEN FROM THE ORDER OF LD.CIT(A) THAT THE ASSESSEE DID NOT ENTER INTO ANY APPEARANCE OR PRODUCE D ANY EVIDENCE, THEREBY FORCING THE LD. CIT(A) TO PROCEED IN HIS ABS ENCE. ON THIS ASPECT NO REASONS ARE RECORDED BY THE LD.CIT(A) SO AS TO GUIDE US TO TEST THE VERACITY OR MERITS OF SUCH ORDER IN THIS APPEAL. IT IS AN ELEMENTARY RULE OF LAW THAT EVEN IN THE ABSENCE OF A STATUTORY PROVISION REQUIRING RECORDING OF REASONS IN SUPPORT OF THE ORDERS, THE QUASI - JUDICIAL AUTHORITY MUST PASS SPEAKING ORDERS SO AS TO STAND THE TEST ITA NO. 2778 / MUM/20 1 3 3 OF SCRUTINY. THUS, AN ORDER PASSED BY AN APPELLATE AUTHORITY DISMISSING AN APPEAL WITHOUT RECORDING REASONS IS LIABLE TO BE QUASHED . 6 . NOTHING COMP ELLED THE LD. CIT(A) TO PASS A CRYPTIC ORDER OR NOT TO ADVERT TO THE M ERITS OF THE CASE AS COULD BE FOUND ON THE RECORD , EVEN IN THE ABSENCE OF THE ASSESSEE. NO T RECORDING THE REASONS PREVENT S THIS TRIBUNAL FROM SCRUTIN IZING THE ORDER OF LD.CIT(A) THERE BY COMPELS THIS TRIBUNAL TO SET ASIDE THE SAME , RESTORING THE MATTER TO THE FILE OF LD. CIT(A) FOR FRESH DISPOSAL ACCORDING TO LAW BY WAY OF SPEAKING ORDER , AFTER GIVING REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . IT DOES NOT MEAN THAT THE LD.CIT(A) SHALL NOT PROCEED IN THE ABSENCE OF ASSESSEE BUT EVEN WHILE PROCEEDING THE CASE EX - PARTE HE SHALL RECORD THE REASONS OF HIS CONCLUSION IN THE MATTER. 7 . IN VIEW OF THIS MATTER, WE SET ASIDE THE ORDER OF LD.CIT(A) FOR FRESH DISPOSAL BY WAY OF SPEAKING ORDER AFTER GIVING FAIR AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST , 2016 SD/ - SD/ - ( SANJAY ARORA) ( MAHAVIR SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 03 RD AUGUS T ,2016 ITA NO. 2778 / MUM/20 1 3 4 PS: AG(ON TOUR) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI