RUSHABH MOTORS PVT. LTD., MUMBAI V. A.C.I.T. 2(3), MUMBAI

ITA 2884/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3797 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R M MADHAVI
• Keywords: Principle of natural justice
• Section: 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 2884/MUM/2012 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 M/S. RUSHABH MOTORS PVT. LTD., WORLD TRADE CENTER, NO.1, UNIT NO.712, 7 TH FLOOR, CUFFE PARADE, MUMBAI - 400 005. % % % % / VS. THE ACIT 2(3), AAYKAR BHAVAN M.K.ROAD, MUMBAI - 400 020 ' '# ./ ( ./ PAN/GIR NO. : AACCR 2839K ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , ' / APPELLANT BY: SHRI ANANT N. PAI *+') - , ' / RESPONDENT BY : SMT. R.M.MADHAVI % - .# / DATE OF HEARING : 15/05/2013 / & - .# / DATE OF PRONOUNCEMENT : 15/05/2013 '0 / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE EX-PARTE ORDER PASSED BY LD. CIT(A)-6, MUMBAI DATED 14/6/201 0 FOR ASSESSMENT YEAR 2007-08. THE GROUND OF APPEAL READS AS UNDER: 1. THE LEARNED CIT (A) ERRED BY CONFIRMING THE DIS ALLOWANCE @ 25% OF CERTAIN EXPENSES ON AD-HOC BASIS CONSIDERING PROVISION OF S ECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 AMOUNTING RS.5,77,249/- WITHOUT GOING THROUGH THE MERITS OF THE CASE AND PASSING AN EX-PARTE ORDER. 2. ON ACCOUNT OF FAILURE OF THE ASSESSEE TO REPRESE NT BEFORE LD. CIT(A) THE APPEAL FILED BY THE ASSESSEE HAS BEEN DISMISSED IN -LIMINE FOLLOWING THE VARIOUS JUDICIAL ./ I.T.A. NO. 2884/MUM/2012 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 2 PRONOUNCEMENTS WHICH INTER-ALIA INCLUDE CIT VS. MUL TIPLAN INDIA LTD.,38 ITD 320. IT IS THE CASE OF THE ASSESSEE THAT LD. CIT(A ) HAS NO POWER TO DISMISS THE APPEAL FILED BY THE ASSESSEE IN-LIMINE AS ACCORDING TO MANDATE OF SECTION 250(6) LD. CIT(A) IS REQUIRED TO STATE THE POINT ARISING I N THE APPEAL AND THE DECISION THEREON ALONG WITH REASONS FOR SUCH DECISION. IN T HIS REGARD LD. AR HAS RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF GU JARAT THEMIS BIOSYN LTD. VS. JCIT, 74 ITD 339 AND INVITED OUR ATTENTION TOWARDS THE FOLLOWING OBSERVATIONS: 3.WE HAVE CAREFULLY CONSIDERED THE FACTS AND CIRC UMSTANCES OF THE CASE AS WELL AS SUBMISSIONS MADE BEFORE US. THE IMPUGNED ORDER PASS ED BY THE CIT(A) IS CLEARLY VIOLATIVE OF THE EXPRESS PROVISIONS OF SECTION 250( 6), WHICH PROVIDES THAT THE APPELLATE ORDERS OF THE CIT(A) ARE TO STATE THE POI NTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND THE REASONS FOR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PROVISION IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE APPELLATE TRIBUNAL. SPEAKING ORDER WOULD OBVIOUSLY ENABLE A PARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINST HIM. ABSENC E OF THE FORMULATION OF THE POINT FOR DECISION FOR WANT OF CLARITY IN A DECISION UN DOUBTEDLY PUTS A PARTY IN QUANDARY. SECTION 250(6) EXPRESSLY EMBODIES THE PRINCIPLES OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUG NED ORDER PASSED BY THE COMMISSIONER (APPEALS) IN VIOLATION OF THE PROVISIO NS OF SECTION 250(6) CANNOT, THEREFORE, BE SUSTAINED. REGARDING THE DECISIONS OF THE DELHI BENCH OF THE TRIBUNAL IN MULTIPLAN INDIA (P.) LTD.S CASE (SUPRA) CITED B Y THE ID. CIT(A), WE FIND THAT THE SAID DECISION IS CLEARLY DISTINGUISHABLE. SECTION 2 54 REFERRING TO THE ORDERS OF THE TRIBUNAL CONFERS PLENARY JURISDICTION ON THE TRIBUN AL IN THE MATTER OF PASSING ORDERS UNDER SECTION 254(1). THERE IS NO SUCH EXPRESS STIP ULATION IN SECTION 254 AS CONTAINED UNDER THE PROVISIONS OF SECTION 250(6) RE LATING TO THE ORDERS OF FIRST APPELLATE AUTHORITY. THEREFORE, RELIANCE PLACED BY THE CIT(A) ON MULTIPLAN INDIA (P.) LTD.S CASE (SUPRA) IS ENTIRELY MISPLACED. SIMILARL Y, THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR (SUPRA) CITED BY THE ID. CIT(A) IS DISTINGUISHABLE AND DOES NOT SUPPORT THE VIEW TAKEN BY THE CIT(A). 4. FOR THE REASONS INDICATED ABOVE, WE HEREBY SET A SIDE THE IMPUGNED ORDER OF THE CIT(A) AND DIRECT THE CIT(A) TO DISPOSE OF THE APPE AL OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY IN ACCORDANCE WITH LAW. 5. FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. 3. ON THE OTHER HAND, LD. D.R RELIED UPON THE ORDER PASSED BY LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. TAKING INTO ACCOUNT THE AFOREMENTIONED DECISION OF THE TRIBUNAL WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFTER GIVING THE ASSESSEE A REASONABLE AND SUF FICIENT OPPORTUNITY OF HEARING. AS WE ARE RESTORING THIS APPEAL TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION WE DO ./ I.T.A. NO. 2884/MUM/2012 ( % % % % & & & & / ASSESSMENT YEARS : 2007-08 3 NOT EXPRESS ANY OPINION ON THE MERITS WHICH WILL BE RE-ADJUDICATED BY LD. CIT(A) IN THE LIGHT OF AFOREMENTIONED DIRECTIONS. 5. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE ASSESSEE IS CONSIDERED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 15/05/2013 . '0 - & #' 1 2%3 15/05/2013 - 4 SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; 2% DATED 15/05/2013 . % . .VM , SR. PS '0 '0 '0 '0 - -- - *.56 *.56 *.56 *.56 7' 7' 7' 7'6&. 6&.6&. 6&. / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- 4. 8 / CIT 5. 694 *.% , , / DR, ITAT, MUMBAI 6. 4: ; / GUARD FILE. '0% '0% '0% '0% / BY ORDER, +6. *. //TRUE COPY// < << < / = = = = (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI