Marvel Agrex Ltd., Ahmedabad V. The Jt.CIT.,(Asstt.)S.R.-2, Ahmedabad

ITA 2949/AHD/2011

• Counselvise Citation: 294920514 RSA 2011
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-05-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 29-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD TANWANI
• Assessee Lawyers: S N DIVETIA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , , , , , , , , !' # $%&' !' # $%&' !' # $%&' !' # $%&', , , , ( ( ( ( ) ) ) ) BEFORE S/SHRI D.K.TYAGI, JUDICIAL MEMBER AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2949/AHD/2011 [ASSTT.YEAR : 1997-1998] M/S. MARVEL AGREX LTD. 21/247, YOGESHWAR APARTMENTS OPP: GHATLODIA POLICE STATION NARANPURA, AHMEDABAD.61. PAN AAACM 9904 C # /VS. JCIT(ASSTT)SR-2 AHMEDABAD. ( (( (+, +, +, +, / APPELLANT) ( (( (-+, -+, -+, -+, / RESPONDENT) # .% / 0 / ASSESSEE BY : SHRI S.N. DIVETIA 2 / 0 / REVENUE BY : SHRI VINOD TANWANI  / %(/ DATE OF HEARING : 30 TH MAY, 2012 456 / %(/ DATE OF PRONOUNCEMENT : 22-6-2012 7 / O R D E R PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-VIII, AHMEDABAD DATED 30.11.2005 FOR THE A.Y.1997-1998. THE ASSESSEE IS AGGRIEVED BY THE EXPARTE ORDER PASSED BY THE CIT(A) WITHOUT GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.2949/AHD/2011 -2- 2. THIS IS THE SECOND ROUND OF LITIGATION BY THE AS SESSEE BEFORE THE ITAT. IN THE FIRST ROUND OF THE LITIGATION, THE IT AT AHMEDABAD BENCH IN THE ASSESSEES APPEAL IN ITA NO.2733/AHD/2 000 DATED 19-7- 2004 SET ASIDE THE ORDER OF THE CIT(A) TO HIS FILE FOR FRESH ADJUDICATION AFTER ALLOWING OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. IT IS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE T HAT IN THE SECOND ROUND OF THE PROCEEDINGS BEFORE THE CIT(A), THE OPP ORTUNITY OF HEARING TO THE ASSESSEE HAS NOT BEEN PROVIDED AND C IT(A) PASSED EXPARTE ORDER. IN THIS CONNECTION, THE LEARNED COU NSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACT THAT IN THE ORIGINAL ASSE SSMENT PROCEEDINGS, THE ASSESSEE FILED RETURN OF INCOME ON 24.11.1997 D ECLARING TOTAL LOSS OF RS.2,38,42,825/- WHICH WAS PROCESSED UNDER SECTI ON 143(1)(A) OF THE ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT. SINCE THER E WAS NO COMPLIANCE FROM THE ASSESSEE, EX PARTE ASSESSMENT UNDER SECTION 144 OF THE ACT WAS FRAMED BY THE AO BY MAKING DISALLOWA NCES TO THE TUNE OF RS.3,67,50,7601/- AND THUS DETERMINING A TOTAL I NCOME AT RS.1,53,43,316/-. AGAINST THIS ORDER, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) ALSO T HERE WAS NO COMPLIANCE, AND THEREFORE THE CIT(A) CONFIRMED THE ADDITION MADE BY THE AO IN HIS ASSESSMENT ORDER. THE ASSESSEE PREFE RRED FURTHER APPEAL BEFORE THE TRIBUNAL, AND THE TRIBUNAL AFTER APPRECI ATING THE SUBMISSIONS OF THE ASSESSEE RESTORED THE MATTER BAC K TO THE FILE OF THE CIT(A) FOR FRESH CONSIDERATION VIDE ITS ORDER DATED 19.07.2004. (A COPY OF WHICH IS PLACED ON RECORD.). IN THE SET AS IDE APPELLATE PROCEEDINGS BEFORE THE CIT(A) ALSO THERE WAS NO SUF FICIENT COMPLIANCE BY THE ASSESSEE BEFORE THE CIT(A) AND HE AGREED WITH THE ITA NO.2949/AHD/2011 -3- FINDINGS OF THE AO IN THE ASSESSMENT UNDER SECTION 144 OF THE ACT AND CONFIRMED THE ADDITIONS. STILL AGGRIEVED, THE ASSE SSEE IS BEFORE US. IT IS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSE E THAT THE ASSESSEE- COMPANY WAS DECLARED AS SICK BY BIFR ON 17.3.1999. THE BIFR VIDE ITS ORDER DATED 31.5.2004 CONFIRMED THE PRIMA FACIE OPINION THAT THE ASSESSEE-COMPANY BE WOUND UP AND FORWARDED ITS RECO MMENDATION TO THE HONBLE GUJARAT HIGH COURT FOR FURTHER ORDERS. ON 20.2.2006, THE HONBLE GUJARAT HIGH COURT PASSED AN ORDER DIRECTIN G THE COMPANY TO BE WOUND UP AND APPOINTED OFFICIAL LIQUIDATOR TO TA KE POSSESSION OF THE ASSETS OF THE COMPANY. THEREAFTER, THE ASSESSE E-COMPANY PREFERRED CIVIL APPLICATION BEFORE THE HONBLE HIGH COURT REQUESTING FOR RECALL OF ITS WINDING UP ORDER. THE PRAYER OF THE ASSESSEE- COMPANY WAS ACCEPTED BY THE HONBLE HIGH COURT AND WINDING UP ORDER WAS RECALLED VIDE ITS ORDER DATED 04.3.2008. THE HONBLE HIGH COURT VIDE THE ORDER DATED 14.11.2008 PASSED THE OR DER THAT THE ASSESSEE-COMPANY NOT TO BE WOUND UP AND REMANDED TH E MATTER TO BIFR. IT IS SUBMITTED THAT THE ADVOCATE WHO WAS AP PEARING BEFORE THE CIT(A) WAS NOT AUTHORIZED BY THE ASSESSEE TO APPEAR ON ITS BEHALF IN THIS MATTER AND THAT THE ADVOCATE DID NOT INFORM TH E COMPANY ABOUT THE HEARING DATES AND THE ADJOURNMENTS HE WAS SEEKI NG NOR ABOUT THE PASSING OF THE ORDERS FROM TIME TO TIME. THE ASSES SEE-COMPANY WAS NOT SERVED ORDER ORIGINAL AND THE ASSESSEE CAME TO KNOW ABOUT THE ORDER ONLY WHEN A NOTICE OF TAX DUES WAS GIVEN BY T HE DEPARTMENT TO THE BIFR, AND THEREFORE THE ASSESSEE-COMPANY VIDE L ETTER DATED 28.02.11 REQUESTED THE DEPARTMENT TO GIVE THE COPY OF THE ORDER WHICH WAS RECEIVED ON 07.1.2011 FROM THE OFFICE OF THE CI T(A). IT IS THEREFORE SUBMITTED THAT THE ASSESSEE-COMPANY HAS N OT DELIBERATELY FAILED IN ATTENDING THE APPEAL BEFORE THE CIT(A) AN D IN FACT WAS NOT ITA NO.2949/AHD/2011 -4- AWARE OF PASSING OF ANY ORDER BY THE CIT(A) AS THE ASSESSEE-COMPANY HAS NO INFORMATION ABOUT THE HEARINGS THAT TOOK PLA CE BECAUSE THE ASSESSEES ADVOCATE DID NOT INFORM ABOUT THE HEARIN GS AND/OR PASSING OF ANY ORDER BY THE CIT(A). IT IS FURTHER SUBMITTE D THAT THERE WAS NO BUSINESS TRANSACTED SINCE THE YEAR 2000 BY THE ASSE SSEE-COMPANY, AND THAT ALL THE STAFF OF THE ASSESSEE-COMPANY LEFT THE JOB AND NOBODY EXCEPT DIRECTORS OF THE COMPANY ARE AVAILABLE. IN VIEW OF ALL ROUND LITIGATION GOING ON AGAINST THE ASSESSEE-COMPANY, W HICH WAS SICK, IT WAS VERY DIFFICULT FOR THE ASSESSEE-COMPANY TO KEEP TRACK OF WHAT WERE GOING ON BEFORE THE CIT(A). BEFORE US, THE AB OVE FACTS WERE MADE BY WAY OF SWORN AFFIDAVIT. THEREFORE, IT IS S UBMITTED THAT ORDER OF THE CIT(A) MAY BE SET ASIDE AND THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO DEFEND ITS CASE BEFORE THE LEAR NED CIT(A). THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND T HAT ASSESSEE- COMPANY WAS SICK COMPANY AND UNDERGOING NUMBER OF LITIGATIONS BEFORE THE BIFR AND THE HONBLE GUJARAT HIGH COURT. THE EXPLANATION OF THE ASSESSEE THAT THERE WAS NO BUSIN ESS IN THE ASSESSEE- COMPANY AND ALL THE STAFF OF THE ASSESSEE-COMPANY L EFT THE JOB AND THAT EXCEPT DIRECTORS OF THE COMPANY NOBODY WAS AVAILABL E TO LOOK AFTER THE ADMINISTRATIVE WORK OF THE COMPANY, CANNOT BE S IMPLY BRUSHED ASIDE. THE CHRONOLOGICAL FACTS NARRATED BY THE ASS ESSEE BEFORE US AND ALSO IN WRITTEN SUBMISSIONS HAVE NOT BEEN CONTROVER TED OR DENIED BY THE LEARNED DR BEFORE US. THE COMPELLING SITUATION S NARRATED ABOVE, IS BEYOND THE CONTROL OF THE ASSESSEE-COMPANY AND T HEREFORE, JUSTICE DEMANDS THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN T O THE ASSESSEE- ITA NO.2949/AHD/2011 -5- COMPANY TO DEFEND ITS CASE BEFORE THE LEARNED CIT(A ). ACCORDINGLY, WE ARE INCLINED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE BY SETTING ASIDE THE IMPUGNED EX PARTE ORDER OF THE LEARNED CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE WITH A DIRECTION TO DEC IDE THE ISSUE DE NOVO AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE , WE DIRECT ACCORDINGLY. WE ALSO DIRECT THE ASSESSEE-COMPANY T O CO-OPERATE IN THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) WITHOUT SEEKING UNNECESSARY ADJOURNMENTS AND TO FULLY CO-OPERATE AN D ASSIST IN ITS DISPOSAL. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. . /D.K. TYAGI) ( /JUDICIAL MEMBER ( # $%&' # $%&' # $%&' # $%&' / ANIL CHATURVEDI) ( ( ( ( /ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD