AQDAS MARITIME AGENCY PVT. LTD., MUMBAI V. ACIT ,CIR 6(1), MUMBAI

ITA 3007/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3258 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 3007 /MUM/201 6 (A.Y: 2011 - 12 ) M/S. AQDAS MARITIME AGENCY PVT. LTD., 32/33, EASTERN CHAMBERS, 128 - A, NANDLAL JAN I MARG, POONA STREET, MUMBAI 400 009 PAN: AAECA 8490 K V. D.C.I.T CIRCLE 6(1)(1) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH G. JHUNJHUNWALA & SHRI SANJAY JAIN DEPARTMENT BY : SHRI RAM TIWARI DATE OF HEARING : 01.06.2018 DATE OF PRONOUNCEMENT : 24 .08 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 12, MUMBAI DATED 17 .02.2016 FOR THE ASSESSMENT YEAR 2011 - 12. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) PASSED EX PARTE ORDER CONFIRMING THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER. IT IS ALSO SUBMITTED BY THE LD. COUNSEL FOR 2 ITA NO.3007/MUM/2016 (A.Y: 2011 - 12) M/S. AQDAS MARITIME AGENCY PVT. LTD., THE ASSESSEE THAT EVEN ASSESSMENT WAS ALSO MADE U/S. 143 (3) R.W.S. 144 OF THE ACT. IT IS ALSO SUBMITTED THAT THE TRIBUNAL BY ITA. NO. 5137/MUM/2014 DATED 11.10.2017 SET - ASIDE THE APPEAL OF THE DIRECTOR MOHAMMEDALI A SHAIKH FOR A.Y. 2009 - 10 TAKING NOTE OF THE FACT THE JUDICIAL CUSTODY OF THE DIRECTOR BETWEEN 2010 - 15 AND ALSO VARIOUS CIRCUMSTANCES BEYOND THE CONTROL OF THE DIRECTOR WHO COULD NOT PURSUE THE CLAIMS BEFORE THE LOWER AUTHORITIES. LD. COUNSEL FOR THE ASSESSEE ALSO INVITED OUR ATTENTION TO THE AFFIDAVIT FILED BY THE MANAGING DIRECTOR MR. NAVID MOHAMMED ALI SHAIKH WHO HAS DEPOSED THAT THE SEVERAL DOCUMENTS RELEVANT TO THE APPEAL COULD NOT BE FURNISHED IN THE COURSE OF THE ASSESSMENT AND THE FIRST APPELLATE STAGE AS THE FATHER OF THE MANAGING DIRECTOR WAS DETAINED IN JUDICIAL CUSTODY AT ARTHUR ROAD JAIL IN CRIMINAL P ROCEEDINGS AND OTHER REASON SUCH AS DESERTION OF CA W HICH PREVENTED THE M F ROM APPEARING AND FILE THE EVIDENCES B EFORE THE AUTHORITIES BELOW . IT WAS DEPOSED THAT HIS FATHER WAS ARRESTED ON 21.09.2010 AND RELEASED FROM THE PRISON ON 01.06.2015 AND BECAUSE OF THESE EVENTS THE DIRECTORS WERE DISTURBED AND THEY WERE ATTENDING TO THE POLICE STATION , CBI INVESTIGATION AND EXTREMELY BUSY ATTENDING WITH COURT TRAILS ETC., AND T HEREFORE THEY WERE PREVENTED FROM FURNISHING THE EVIDENCES IN THE ASSESSMENT AND AT FIRST APPELLATE STAGES AND ALSO THE CA DE SERTED THEM WHICH PREVENTED THEM F ROM APPEARING AND FILE THE EVIDENCES BEFORE THE 3 ITA NO.3007/MUM/2016 (A.Y: 2011 - 12) M/S. AQDAS MARITIME AGENCY PVT. LTD., AUTHORITIES BELOW . THEREFORE, L D. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE INTEREST OF JUSTICE ALL THE ISSUES IN THE APPEAL BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ADJUDICATION BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE . 3. LD. DR HAS NO SERIOUS OBJECTION IN REMITTING THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERU SED THE ORDERS OF THE AUTHORITIES BELOW. UNDISPUTEDLY IN THIS CASE THE ASSESSMENT WAS MADE U/S. 143 (3) R.W.S. 144 OF THE ACT AND THERE WERE NO REPRESENTATIONS BEFORE THE ASSESSING OFFICER. THE ASSESSEE FAILED TO PRODUCE THE EVIDENCES AND EXPLANATIONS ON THE QUERIES RAISED BY THE ASSESSING OFFICER. IT IS ALSO THE SAME POSITION BEFORE THE FIRST APPELLATE AUTHORIT Y AS NONE APPEARED BEFORE HIM. BEFORE US , IT IS SUBMITTED THAT DUE TO THE CIRCUMSTANCES BEYOND THE CONTROL OF THE DIRECTORS AND DESERTION OF CA E TC. , ASSESSEE COULD NOT PARTICIPATE AND FURNISH THE EVIDENCES IN THE ASSESSMENT AND FIRST APPELLATE PROCEEDINGS. WE NOTICE THAT THE TRIBUNAL IN ITA.NO. 5137/MUM/2014 BY ORDER DATED 11.10.2017 FOR THE A.Y. 2009 - 10 CONSIDERING THE SITUATION IN THE CASE OF ON E OF THE DIRECTORS MOHAMMEDALI A SHAIKH , RESTORED THE APPEAL AND THE ADDITIONAL EVIDENCES FURNISHED BY 4 ITA NO.3007/MUM/2016 (A.Y: 2011 - 12) M/S. AQDAS MARITIME AGENCY PVT. LTD., THE ASSESSEE TO THE ASSESSING OFFICER FOR D ENOVO ADJUDICATION OBSERVING AS UNDER: - 8. WE HAVE HEARD BOTH THE PARTIES, PERUSED MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE FACTS WITH REGARD TO THE ASSESSEES JUDICIAL CUSTODY BETWEEN 2010 - 2015 WAS NOT DISPUTED BY THE LOWER AUTHORITIES. THE CIT(A), THOUGH HAS GIVEN NUMBER OF HEARINGS, THE ASSESSEE COULD NOT ATTEND TH E HEARING FOR THE REASONS BEYOND HIS CONTROL. NO DOUBT, THE ASSESSEE HAS TO APPEAR BEFORE THE AUTHORITIES IF HE IS INTERESTED IN PROSECUTING HIS APPEAL AND FILE NECESSARY EVIDENCE TO JUSTIFY HIS CASE. IN THIS CASE, THE REASONS QUOTED BY THE ASSESSEE FOR NO T APPEARING BEFORE CIT(A), IS NO DOUBT BEYOND HIS CONTROL. BEFORE US, THE ASSESSEE HAS FILED A PAPER BOOK WHICH CONTAINS VARIOUS DETAILS AND CONTENDED THAT THESE EVIDENCES WERE NOT BEFORE THE AO AS WELL AS THE CIT(A). THEREFORE, WE ARE OF THE CONSIDERED VI EW THAT THE ISSUE NEEDS TO BE RE - EXAMINED BY THE AO IN THE LIGHT OF THE FACT THAT THE ASSESSEE WAS NOT ABLE TO APPEAR DURING THE ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS AND ALSO ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. HENCE, WE SET ASIDE THE I SSUE TO THE FILE OF THE AO AND DIRECT HIM TO CONSIDER THE ISSUE AFRESH IN THE LIGHT OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING. 5. WE HAVE ALSO PERUSED THE AFFIDAVIT FILED BY THE MANAGING DIRECTOR OF THE COMPANY EXPLAINING THE CIRCUMSTANCES UNDER WHICH THE ASSESSEE COULD NOT PURSUE THE MATTERS BEFORE THE LOWER AUTHORITIES AND OTHER DOCUMENTS , EVIDENCES PRODUCED BEFORE US WHICH PREVENTED THE ASSESSEE TO APPEAR AND ADDUCE THE EVIDENCES BEFORE THE LOWER AUTH ORITIES. IN THE SAID AFFIDAVIT DATED 12.12.2017 E XECUTED BY MR. NAVID MOHAMMED ALI SHAIKH DIRECTOR OF THE COMPANY IT IS AVERRED AND DEPOSED THAT HIS FATHER MR. MOHAMMED ALI ABU BAKAR SHAIKH WAS DETAINED IN JUDICIAL CUSTODY AT ARTHUR ROAD JAIL FOR ALLEGEDLY INVOLVED IN A CRIMINAL CONSPIRACY. IT WAS DEPOSED THAT HIS FATHER WAS ARRESTED ON 21.09.2010 AND WAS ACQUITTED BY HON'BLE SPECIAL JUDGE OF GREATER MUMBAI ON 20.03.2015 AND THEREAFTER WAS RELEASED FROM PRISON ON 01.06.2015. IT IS AVERRED AND DEPOSED THAT THESE PROCEEDINGS BEFORE THE COUR TS AS POLICE / CBI RESULTED IN EXTREME 5 ITA NO.3007/MUM/2016 (A.Y: 2011 - 12) M/S. AQDAS MARITIME AGENCY PVT. LTD., STRESS AND DISTURBANCES IN THE LIFES OF THE DIRECTORS AND ALSO IT IS AVERRED THAT CA OF THE COMPANY DESERTED THEM WHICH CUMULATIVELY LEAD TO THE NON - APPEARANCES BEFORE THE AUTHORITIES BELOW . IN THIS AFFIDAVIT IT IS ALSO AVERRED THAT FRESH ADDITIONAL EVIDENCES ARE BEING PLACED ON RECORD AND PRAYER WAS MADE FOR ADMISSION OF THESE ADDIT IONAL EVIDENCES UNDER RULE 29 OF INCOME - TAX RULES, 1963 AND PRAYER IS MADE FOR ADMISSION OF THESE ADDITIONAL EVIDENCES. THE ASSESSEE IS ALSO ENCLOSING PAPER BOOK, JUDGEMENT OF THE TRIAL COURT IN THE CASE OF HIS FATHER DATED 20.03.2015 ACQUITTING HIM FROM THE CHARGES WHICH WERE FRAMED BY THE STATE AGAINST HIS FATHER. 6. WE FIND THAT THERE IS A PLAUSIBLE EXPLANATION GIVEN BY THE ASSESSEE FOR NOT PROSECUTING THE ASSESSMENT AS WELL AS THE FIRST APPELLATE PROCEEDINGS. IN THE CIRCUMSTANCES, IN THE INTEREST OF JUS TICE WE ARE OF THE VIEW THAT ALL THE ISSUES IN APPEAL SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR D ENOVO ADJUDICATION. ADDITIONAL EVIDENCES PRODUCED BEFORE US SHOULD BE CONSIDERED BY THE ASSESSING OFFICER AND DECIDE ALL THE ISSUES AFRESH I N ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, WE RESTORE ALL THE ISSUES IN THE APPEAL OF THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER FOR D ENOVO ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE IS HEREBY DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER IN SET - SIDE 6 ITA NO.3007/MUM/2016 (A.Y: 2011 - 12) M/S. AQDAS MARITIME AGENCY PVT. LTD., PROCEEDINGS AND COOPERATE WITH REVENUE IN COMPLETION OF THE DENOVO ASSESSMENT BY THE ASSESSING OFFICER. NEEDLESS TO SAY THAT IT IS INCUMBENT UPON THE ASSESSEE TO PRODUCE ALL NECESSARY EVIDENCES AND EXPLANATIONS BEFORE THE ASSESSING OFFICER TO SUPPORT ITS CONTENTIONS OTHERWISE THE ASSESSING OFFICER SHALL BE FREE TO ADJUDICATE THE ISSUES IN ACCORDANCE WITH LAW ON MERITS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 24 TH AUGUST , 2018 SD/ - SD/ - ( RAMIT KOCHAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 24 / 0 8 / 2018 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM