MAHENDRA KUMAR PATIODIA, MUMBAI V. ASST CUT CC 40, MUMBAI

ITA 2982/MUM/2014

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5403 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: MRS RITIKA AGRAWAL
• Keywords: Principle of natural justice; Assessment record
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.2892/M/2014 ASSESSMENT YEAR: 1999-2000 M/S. SHAKTI CABLE INDUSTRIES, C/O. SOUTHERN ELECTRIC CORP., E.S. PATANWALA CROSS ROAD, COTTON GREEN, MUMBAI 400 033 PAN: AAAFS1211R VS. DCIT 22(3), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : MRS. RITIKA AGRAWAL, A.R. REVENUE BY : SHRI D.G. PANSARI, D.R. DATE OF HEARING : 18.09.2018 DATE OF PRONOUNCEMENT : 29.10.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 04.02.2013 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 1999-2000. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L NUMBERING 1 TO 7 RAISING A LEGAL ISSUE AND ALSO VAR IOUS ISSUES ON MERIT. 3. THE GROUND NO.2 RAISED BY THE ASSESSEE IS AGAINS T THE ORDER OF LD. CIT(A) UPHOLDING THE ORDER OF AO DESPITE THE FACT THAT STATUTORY NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT WAS ITA NO.2892/M/2014 M/S. SHAKTI CABLE INDUSTRIES 2 SERVED UPON THE ASSESSEE AFTER EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSEE HAS FILED THE RE TURN. 4. THE LD. COUNSEL OF THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE ISSUE WAS CHALLENGED BEFORE THE LD. CIT(A) BY RAISING ADDITIONAL GROUND VIDE LETTER DATED 07.08.2018 RAIS ING THE ISSUE THAT THE ASSESSMENT ORDER IS ILLEGAL AND VOID AB-IN ITIO SINCE STATUTORY NOTICE UNDER SECTION 143(2) WAS SERVED AF TER EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE AS SESSEE FILED THE RETURN OF INCOME. THEREFORE, ASSESSMENT ORDER SHOULD BE ANNULLED ON THIS GROUND. THE LD. CIT(A) DISMISSED THE ADDITIONAL GROUND RAISED BY THE ASSESSEE BY NOT ADM ITTING THE SAME FOR THE REASON THAT ASSESSEE HAS FAILED TO DEM ONSTRATE COGENT AND GOOD REASONS AS TO WHY THE ADDITIONAL GR OUND NOT RAISED EARLIER. THE LD AR STATED THAT IT SHOULD BE ADMITTED AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT 229 ITR 383 (SC) , AHMEDABAD ELECTRICITY COMPANY LTD. VS. CIT (1993) 1 99 ITR 351 (BOM) AND JUTE CORPORATION INDIA VS. CIT (1991) 187 (ITR) 688. ACCORDING TO THE LD. CIT(A) THE ASSESSEE HAS NOT SH OWN ANY REASON OR MATERIAL DUE TO WHICH THE SAID GROUND COU LD NOT BE RAISED IN THE FIRST ROUND OF APPEAL EITHER BEFORE T HE AO OR BEFORE THE LD. CIT(A) OR BEFORE THE TRIBUNAL AND THEREFORE FINALLY DENIED THE ADMISSION OF THIS GROUND. 5. THE LD. D.R., ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF LD. CIT(A) ON THIS ISSUE BY SUBMITTING THAT THE GROUND WHICH WAS NOT RAISED IN THE FIRST ROUND OF APPEAL EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A) OR BEFORE THE TRIBUNAL WAS RIGHTLY REJECTED BY THE LD. CIT(A) AND DESERVED TO BE AFFIR MED. ITA NO.2892/M/2014 M/S. SHAKTI CABLE INDUSTRIES 3 6. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ISSUE RAISED B Y THE ASSESSEE IS A LEGAL ISSUE WHICH IS ARISING OUT OF THE ASSESS MENT RECORDS WHICH WERE BEFORE THE AUTHORITIES BELOW EVEN IN THE FIRST ROUND OF APPEAL. WE ARE OF THE CONSIDERED VIEW THAT SINCE THE ISSUE IS ARISING OUT OF ASSESSMENT RECORDS, THE ASSESSEE IS WITHIN ITS RIGHTS TO RAISE THE SAID ISSUE AT ANY STAGE. THE C ASE OF THE ASSESSEE IS FULLY SUPPORTED BY THE DECISION OF THE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT 229 ITR 383 (SC), AHMEDABAD ELECTRICITY COMPANY LTD. VS . CIT (1993) 199 ITR 351 (BOM) AND JUTE CORPORATION INDIA VS. CIT (1991) 187 (ITR) 688. IN OUR OPINION, THE ENDS OF JUSTICE WOULD BE MET AND PRINCIPLES OF NATURAL JUSTICE WOULD BE S ATISFIED IF THE ASSESSEE IS GIVEN ONE MORE CHANCE TO PRESENT ITS CA SE BEFORE THE LOWER AUTHORITIES. ACCORDINGLY, WE ARE SETTING ASI DE THE APPEAL TO THE FILE OF THE AO TO DECIDE THE LEGAL ISSUE ON THE FACTS AS PER LAW AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE. WE ARE NOT DECIDING THE ISSUES RAISED ON MERIT AT THIS STAGE AS WE HAVE ALREADY RESTORED THE APPEAL TO THE FILE OF THE AO FOR DENOVO ASSESSMENT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 29.10.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 29.10.2018. * KISHORE, SR. P.S. ITA NO.2892/M/2014 M/S. SHAKTI CABLE INDUSTRIES 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.