SUBHTEX INIDA LTD, MUMBAI V. ITO 4(3)(3), MUMBAI

ITA 2907/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2939 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJN EESH K ARVIND
• Keywords: Business income; Opportunity of being heard; Principle of natural justice; Non passing of speaking order
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH , MUMBAI BEFORE SHRI SHAILEND RA K UMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER . ITA. NO. 2 907 / M UM /20 1 2 (ASSESSMENT YEAR: 2 0 0 8 - 0 9 ) SUBHTEX INDIA LTD. SURTI CHAMBE RS, 2 ND DHOBI TALAO LANE, 18, MUMBAI 400 002 APPELLANT VS. IT O, 4 (3)( 3 ) , MUMBAI RESPONDENT PAN: AA BCS3969E / BY APPELLANT : NONE / BY RESPONDENT : SHRI RAJNEESH K ARVIND , D .R. / DATE OF HEARING : 18 . 0 8 .201 6 / DATE OF PRONOUNCEMENT : 14. 9. 201 6 ORDER PER SHA ILENDRA KUMAR YADAV, J . M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME - TAX (APPEALS) - 9 , MUMBAI , DATED 0 4 . 01 . 20 1 2 FOR A.Y. 20 0 5 - 0 6 ON FOLLOWING GROUND S : 1. ON FACTS AND CIRCUMSTANCE OF THE CASE THE LEARNED CIT (A) E RRED IN : - 1.01 REJECTING THE APPEAL AS NOT MAINTAINABLE. I T A NO . 2 9 0 7 / M UM / 1 2 A.Y. 0 8 - 0 9 [ SUBHTEX INDIA LTD. VS. ITO) PAGE 2 1.02 DISMISSING THE APPEAL ON MERITS OF THE CASE WITHOUT PASSING SPEAKING ORDER. 1.03 NOT ADJUDICATING GROUND OF APPEAL THAT ASSESSMENT ORDER PASSED U/S. 143(3) OF THE I. T. ACT, 1961 IS ILLEGAL, BED IN LAW AND ALSO TIME BARRED. 1.04 NOT ADJUDICATING THE GROUND OF APPEAL THAT ASSESSMENT ORDER WAS PASSED U/S. 143(3) OF THE I. T. ACT, 1961 WITHOUT GIVING PROPER OPPORTUNITY OF HEARING AND WITHOUT FOLLOWING PRINCIPAL OF NATURE OFFICIAL JUSTICE. 1.05 CONFIRMING THE DISALLOWANCE OF RS. 1,20,000/ - BEING RENT FROM BUSINESS INCOME WHICH WAS TAXED TWICE UNDER THE HEAD BUSINESS INCOME & UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 1.06 CONFIRMING DISALLOWANCE OF LEASE RENT OF RS. 67,500/ - F ROM BUSINESS INCOME AND CONFIRMING TAXING RS. 67,500/ - TWICE UNDER THE HEAD BUSINESS INCOME AND INCOME FROM OTHER SOURCES. 1.07 CONFIRMING PAYMENT OF RS. 5,00,000/ - PAID TOWARDS POLLUTION CHARGES. 1.08 CONFIRMING ADDITION OF RS. 40,353/ - ON ACCOUNT OF INTEREST INCOME. 1.09 CONFIRMING DISALLOWANCE OF RS. 1,24,81,546/ - UNDER SECTION 80IB BEING INCOME OF UNIT - II. 1.10 CONFIRMING THE OBSERVATION OF LEARNED A. O. THAT UNIT - II WAS NOT CARRYING ANY MANUFACTURING ACTIVITY AS ENVISAGED BY SECT ION 80IB OF THE I.T. ACT, 1961. 2. LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT CIT(A) HAS DISMISSED THE APPEAL OF ASSESSEE BY PASSING NON SPEAKING ORDER. CIT(A) CAN PASS EX PARTE ORDER ON MERIT WHEN ASSESSEE IS NOT APPEARING IN SPITE OF SUMMONS DUL Y SERVED TO HIM. BUT, CIT(A) HAS NOT SUPPOSED TO PASS NON SPEAKING EX PARTE ORDER. I T A NO . 2 9 0 7 / M UM / 1 2 A.Y. 0 8 - 0 9 [ SUBHTEX INDIA LTD. VS. ITO) PAGE 3 THE REASONING IS THE SOUL OF ORDER WHICH IS MISSING IN THIS CASE AND NON SPEAKING ORDER IS AGAINST PRINCIPLES OF NATURAL JUSTICE, SO, IN THE INTEREST OF JUSTICE, WE SET AS IDE THE ORDER OF CIT(A) AND RESTORE THE ISSUE TO HIM WITH DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO ASSESSEE. AT THE SAME TIME, ASSESSEE IS DIRECTED TO CO - OPERATE IN THE PROCEEDINGS BEFORE THE CIT(A ). SINCE, WE RESTORE THE ISSUE ON PRELIMINARY ISSUE AS DISCUSSED ABOVE, SO, WE ARE REFRAINING TO COMMENT ON MERIT OF THE SAME AT HAND. 3. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . PRONOUNCED IN THE OPEN COURT ON THIS THE 14TH DAY OF SEPT , 201 6 . S D SD ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI : DATED 14. 9 . 201 6 S.K.SINHA / COPY OF OR DER FORWARDED TO: - 1 . / REVENUE 2 . / ASSESSEE 3 . / CONCERNED CIT 4. - / CIT (A) 5 . , , / DR, ITAT, MUMBAI 6 . / GUARD FILE. BY ORDER / , T RUE COPY / , ,