JAYANT OIL MILLS P.LTD, MUMBAI V. ITO 6(1)(1), MUMBAI

ITA 3029/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8035 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2014
• Court: TRIBUNAL
• Department Lawyers: SHISHIR DHAMIJA
• Assessee Lawyers: B N RAO
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C . N . PRASAD , JUDICIAL MEMBER AND SHRI RA JESH KUMAR , ACCOUNTANT MEMBER ITA NO. 302 9 /MUM/201 4 : (A.Y : 20 09 - 1 0 ) M/S JAYANT OIL MILLS P. LTD. 13, SITAFALWADI DR MASCARENHAS ROAD MAZGAON MUMBAI 400 0 1 0 PAN : A AACJ1204C ( / APPELLANT) VS. INCOME TAX OFFICER 6(1)(1) AAYAKAR BHAVAN MUMBAI 400 021 ( / RESPONDENT) / A PPELLANT BY : SHRI B.N.RAO / RE SPONDENT BY : SHRI SHISHIR DHAMIJA / DATE OF HEARING : 29 / 12 /201 6 DATE OF PRONOUNCEMENT : 10/ 03 / 2017 / O R D E R PER C.N.PRASAD (J.M.) : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (APPEALS) - 14 , MUMBAI DATED 15 . 01 .201 4 FOR THE ASSESSMENT YEAR 20 09 - 1 0 ARISING OUT OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT . 2 JAYANT OIL MILLS PVT. LTD. ITA NO. 302 9 /MUM/201 4 , A.Y.20 09 - 1 0 2. AT THE OUTSET, THE ASSESSEE IN THE GROUNDS OF APPEAL NOS. 1 AND 2 CHALLENGED THE ORDER OF THE LD. CIT (APPEALS) IN NOT GIVING REASONABLE OPPORTUNITY AND NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BEFORE THE LD. CIT (APPEALS) CONTENDING THAT AS THE SITUATION WAS BEYOND THE CONTROL OF THE ASSESSEE TO PRODUCE THE DETAILS IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE BEFORE THE LD. CIT (APPEALS) WERE REJECTED ON THE GROUND THAT THE ASSESSEE DID NOT FURNISH THE DETAILS AS ASKED FOR, BOOKS OF ACCOUNTS ETC. WERE NOT FURNISHED. THE LD. CIT (APPEALS) WAS OF THE VIEW THAT THE ASSESSEE TOOK THE PROCEEDINGS VERY LIGHTLY AND INSPITE OF GIVING OPPORTUNITIES TO THE ASSESSEE, THE ASSESSEE DID NOT AVAIL THE OPPORTUNITIES AND AT THE SAME TIME SHOWED GREAT DISRESPECT TO THE PROCESS OF LAW. WITH THESE OBSERVATIONS, THE LD.CIT (APPEALS) REFUSED TO ADMIT THE ADDITIONAL EVIDENCES. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSEE HAS EXPLAINED THE REASONS AS TO WHY THE EVIDENCES COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER AS THE RECORDS WERE TOOK AWAY BY THE SALES TAX DEPARTMENT AND ASSESSEE BEING ASSOCIATE COMPANY OF BI OTOR INDUSTRIES LTD. WHICH IS UNDER CBI INVESTIGATION AND VARIOUS OTHER LEGAL PROCEEDINGS BY STATE BANK OF INDIA AND VARIOUS CONSORTIUM BANKS FOR RECOVERY OF OUTSTANDING BORROWINGS WERE UNDER PROCESS. AT THE TIME OF ASSESSMENT FOR INVESTIGATION PURPOSE, T HE CBI HAS TAKEN AWAY MAIN SERVER FROM ASSESSEES MUMBAI OFFICE AND BARODA OFFICE INCLUDING VARIOUS RECORDS, ACCOUNTS AND DOCUMENTS OF BIOTOR INDUSTRIES LTD AND ITS GROUP COMPANIES . THE LD. 3 JAYANT OIL MILLS PVT. LTD. ITA NO. 302 9 /MUM/201 4 , A.Y.20 09 - 1 0 COUNSEL SUBMITS THAT BECAUSE OF ALL THESE REASONS WHICH ARE BEYO ND THE CONTROL OF THE ASSESSEE, THE EVIDENCES COULD NOT BE FURNISHED BEFORE THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, THE LD. COUNSEL SUBMITS THAT SINCE THE ASSESSEE SOUGHT ADJOURNMENT FOR VARIOUS GENUINE REASONS, THE LD. CIT (APPEALS) SHOULD NOT HAVE COME TO THE CONCLUSION THAT ASSESSEE IS SHOWING GREAT DISRESPECT TO THE PROCESS OF LAW. THEREFORE, HE SUBMITS THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD.CIT (APPEALS) FOR ADMISSION OF ADDITIONAL EVIDENCES AND FOR D ECISION ON MERITS. 4 . THE LD. DR HAS NO SERIOUS OBJECTION IN SENDING THE MATTER BACK TO THE LD. CIT (APPEALS) FOR ADMITTING THE ADDITIONAL EVIDENCES. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES. IN THE COURSE OF ASSES SMENT PROCEEDINGS WHEN THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FURNISH VARIOUS DETAILS IT WAS SUBMITTED BY THE ASSESSEE THAT THERE WAS AN INVESTIGATION GOING ON IN THE ASSESSEE COMPANY AS IT WAS AN ASSOCIATE OF BIOTAR INDUSTRIES LTD., WHEREIN, CBI I NVESTIGATION AND THE LEGAL PROCEEDINGS FROM STATE BANK OF INDIA AND ITS CONSORTIUM BANKS FOR RECOVERY OF DUES. FOR THE PURPOSE OF INVESTIGATION, CBI HAS TAKEN AWAY MAIN SERVER AND VARIOUS RECORDS, DOCUMENTS ETC. OF BIOTOR INCLUDING ITS GROUP COMPANIES. I T WAS ALSO SUBMITTED BEFORE US THAT THE RECORDS WERE SEIZED BY SALES TAX DEPARTMENT ALSO DUE TO WHICH NECESSARY INFORMATION COULD NOT BE SUBMITTED IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE LD. C OUNSEL ALSO BROUGHT OUR NOTICE TO THE ADDITIONAL 4 JAYANT OIL MILLS PVT. LTD. ITA NO. 302 9 /MUM/201 4 , A.Y.20 09 - 1 0 EVIDENCES AND SUBMITS THAT ASSESSEE MADE SOME EFFORTS AND OBTAINED WHATEVER POSSIBLE RECORDS FROM VARIOUS SOURCES AND THE SAME ARE BEING FURNISHED IN THE FORM OF PAPER BOOK CONTAINING 205 PAGES RELATING TO THE ISSUES IN RESPECT OF THE ADDITIONS/DISALLOWANCES MADE. WE FIND FROM THE LD. CIT (APPEALS) THAT THE ADDITIONAL EVIDENCES WERE NOT ADMITTED MAINLY FOR THE REASON THAT THE LD. CIT (APPEALS) IS OF THE VIEW THAT THE ASSESSE IS PROLONGING THE PROCEEDINGS, NOT COOPERATED, NOT SUBMITTED THE REQUIRED DETAILS ASKED FOR ETC . THEREFORE, THE LD. CIT (APPEALS) CONCLUDED THAT ADMISSION OF ADDITIONAL EVIDENCES IS NOT A MATTER OF RIGHT AND FURTHER IT WAS HELD THAT THERE WAS NO SUFFICIENT CAUSE FOR NOT PRODUCING THE EVIDENCES BEFORE THE ASSESSING OFFICER WHICH IN OUR OPINION I S NOT PROPER AND JUST. NO DOUBT, THE APPELLATE AUTHORITY IS VESTED WITH THE DISCRETION WHETHER TO ADMIT OR REJECT AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES, BUT THE APPELLATE AUTHORITY SHOULD EXERCISE THE DISCRETION JUDICIOUSLY. IN THIS CASE, THE APPROACH OF THE LD. CIT(APPEALS) IN REJECTING THE PETITION FOR ADMISSION OF ADDITIONAL EVIDENCES IS NOT EXERCISED JUDICIOUSLY. IN THE CIRCUMSTANCES TAKING THE TOTALITY OF THE FACTS INTO CONSIDERATION, WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT (A PPEALS) TO CONSIDER THE PETITION FOR ADMISSION OF ADDITIONAL EVIDENCES JUDICIOUSLY AND TO DECIDE THE APPEAL ON MERITS. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE PROCEEDINGS WITH LD. CIT (APPEALS) AND FURNISH THE NECESSARY INFORMATION AS CALLED FOR. THUS, WE RESTORE THIS APPEAL TO THE FILE OF THE LD. CIT (APPEALS) AND THE SAME BE DISPOSE D OF F IN ACCORDANCE WITH LAW AFTER GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 5 JAYANT OIL MILLS PVT. LTD. ITA NO. 302 9 /MUM/201 4 , A.Y.20 09 - 1 0 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 10 TH DAY OF MARCH 2017 . SD/ - SD/ - RA JESH KUMAR C.N.PRASAD / / ACCOUNTANT MEMBER JUDICIAL MEMBER / MUMBAI; / DATED 10 / 0 3 / 2017 LR, SPS / COPY OF THE ORDER FORWARDED TO : / BY ORDER , ( ASSTT. REGISTRAR) , / ITAT, MUM 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. // TRUE COPY / /