RAJESH INDUSTRIES, MUMBAI V. ITO 14(2)(2), MUMBAI

ITA 3060/MUM/2012

• Counselvise Citation: 306019914 RSA 2012
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 27-10-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 04-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./I.T.A. NO.3060/MUM/2012 ( / ASSESSMENT YEAR :1999-2000) M/S RAJESH INDUSTRIES, 6, LAL SINGH BUILDING, LOHAR CHAWL, MUMBAI-400002 / VS. INCOME TAX OFFICER 14(2)(2), MUMBAI ( / APPELLANT) .. ( !' / RESPONDENT) ./I.T.A. NO.3061/MUM/2012 ( / ASSESSMENT YEAR :2003-04) M/S RAJESH INDUSTRIES, 6, LAL SINGH BUILDING, LOHAR CHAWL, MUMBAI-400002 / VS. INCOME TAX OFFICER 14(2)(2), MUMBAI ( / APPELLANT) .. ( !' / RESPONDENT) ./I.T.A. NO.3062/MUM/2012 ( / ASSESSMENT YEAR :2003-04) M/S RAJESH INDUSTRIES, 6, LAL SINGH BUILDING, LOHAR CHAWL, MUMBAI-400002 / VS. INCOME TAX OFFICER 14(2)(2), MUMBAI ( / APPELLANT) . . ( !' / RESPONDENT) ./ $% ./ PAN/GIRNO.:AADFR5414Q & / APPELLANT BY : SHRI K GOPAL !' ' & /RESPONDENT BY : SHRI NEIL PHILIP ( ) ' * + / DATE OF HEARING : 27.10.2014 ,- ' * + /DATE OF PRONOUNCEMENT : 29.10.2014 I.T.A. NO.3060 TO 3062/MUM/2012 2 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE D IRECTED AGAINST THE ORDERS PASSED BY THE LD. CIT(A) AND THEY RELATE TO ASSESSM ENT YEARS 1999-2000 AND 2003-04. IN RESPECT OF APPEALS FILED FOR AY 2003-04 , ONE WAS RELATED TO QUANTUM APPEAL AND THE OTHER ONE WAS RELATED TO THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. ALL THE APPEALS ARE BARRED BY LIMITATION, VIZ. , ITA NO.3060/MUM/2012 IS BARRED BY LIMITATION BY 1944 DAYS;ITA NO.3061/MUM/2 012 IS BARRED BY LIMITATION BY 712 DAYS AND ITA NO.3062/MUM/2012 IS BARRED BY L IMITATION BY 1202 DAYS. 2. WE HAVE HEARD BOTH THE PARTIES ON THE PRELIMINAR Y ISSUE OF LIMITATION. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSEE IS A PARTNERSHIP FIRM AND ALL THE PARTNERS HAVE EXPIRED. THE LD. COUNSEL SUBMITTED THAT THE PRESENT APPEALS ARE BEING PROSECUTED BY SO N (LEGAL REPRESENTATIVE) OF THE MANAGING PARTNER SHRI RAJESH B SHROFF, WHOSE NAME IS SHRI PRABHAV SHROFF. THE LD A.R SUBMITTED THAT SHRI PRABHAV B SHROFF WAS JUST 20 YEARS OLD WHEN THE APPEALS WERE FILED IN 2012. THE LD. COUNS EL SUBMITTED THAT THE ASSESSMENT ORDERS RELATING TO ASSESSMENT YEARS 2000 -01, 2001-02 AND 2002-03 WERE EARLIER PROSECUTED BY WIFE OF SHRI RAJESH B S HROFF AND MOTHER OF SHRI PRABHAV SHROFF, NAMED DARSHANA RAJESH SHROFF. THE LD. COUNSEL SUBMITTED THAT SMT.DARSHNA R.SHROFF ALSO EXPIRED ON 27.6.2010. HE NCE SHRI PRABHAV SHROFF WAS NOT AWARE OF PENDING DEMANDS AGAINST THE PARTNERSHI P FIRM. ONLY IN 2012 SHRI PRABHAV R SHROFF CAME TO KNOW OF THE PENDING DEMAND /LITIGATION, WHEN HE RECEIVED NOTICE OF DEMAND DATED 8.2.2012 FROM THE A O. THEREAFTER SHRI PRABHAV R SHROFF HAS CONTACTED HIS LEGAL CONSULTANTS AND HA S FILED THESE APPEALS. THE LD. COUNSEL FURTHER SUBMITTED THAT SHRI PRABHAV SHROF F HAS FILED AN AFFIDAVIT EXPLAINING ALL THESE DETAILS AND THE DELAY OCCURRED IN FILING THE APPEALS IS NOT INTENTIONAL OR WANTON ONE. THE LD. AR FURTHER SUBM ITTED THAT THE APPEALS FILED BY THE MOTHER OF PRESENT PROSECUTOR FOR THE ASSESSMEN T YEARS 2000-01, 2001-02 AND 2002-03 WERE ALSO BELATED BY MORE THAN 520 DAY S AND THE HONBLE ITAT D BENCH, MUMBAI WAS PLEASED TO CONDONE THE DELAY BY APPRECIATING THE I.T.A. NO.3060 TO 3062/MUM/2012 3 PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE. IN TH IS REGARD, THE TRIBUNAL HAD PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION, VS MST. KATIJI & ORS REPORTED IN 167 ITR 471, WHEREIN IT IS HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN I NJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY ACCORDINGLY, THE LD. AR PRAYED THAT THE DELAY OCCUR RED IN FILING THE PRESENT APPEALS BE CONDONED BY DULY CONS IDERING THE PECULIAR FACTS AND CIRCUMSTANCES PREVAILING IN THE INSTANT CASES. 3. WE ALSO HEARD LD D.R AND PERUSED THE RECORD. FRO M THE FACTS NARRATED BY THE LD. AR AND UPON THE PERUSAL OF MATERIALS AV AILABLE ON RECORD, WE ARE OF THE VIEW THAT SHRI PRABHAV R SHROFF WHO IS PROSECUTING THE PRESE NT APPEALS HAS SHOWN REASONABLE CAUSE IN PREFERRING THESE APPEALS BELATEDLY. HENCE, WE ARE OF THE VIEW THAT THE DELAY IN FILING THESE APPEALS DES ERVES TO BE CONDONED AND ACCORDINGLY, WE CONDONE THE DELAY IN FILING ALL THE THREE APPEALS AND ADMIT THEM FOR HEARING. 4. ON MERITS, WE HAVE HEARD THE PARTIES. THE LD.AR SUBMITTED THAT THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 1999-2000 AS WELL AS APPELLATE ORDER PASSED FOR THAT YEAR ARE EX-PARTE ORDERS AND HENCE THE ASSESSEE DID NOT GET OPPORTUNITY TO PRESENT ITS CASE BEFORE THE TAXING A UTHORITIES. THE LD. AR FURTHER SUBMITTED THAT THE AO PASSED THE ORDER FOR ASSESSME NT YEARS 2003-04 U/S 143(3) OF THE ACT BUT NONE APPEARED BEFORE THE LD. CIT(A) IN THE APPELLATE PROCEEDINGS. THE LD. AR SUBMITTED THAT THE ISSUE CO NSIDERED IN ASSESSMENT YEARS 1999-2000 AND 2003-04 ARE IDENTICAL TO THE ISSUES T HAT WERE CONSIDERED BY THE TRIBUNAL IN ASSESSMENT YEARS 2000-01 TO 2002-03. TH E LD. AR SUBMITTED THAT THE TRIBUNAL, AFTER CONSIDERING THE CONTENTIONS MADE IN THE APPEALS RELATING TO THE ASSESSMENT YEARS 2000-01 TO 2002-03 IN ITA NOS. 261 2, 2613 AND 2614/MUM/2009, HAS SET ASIDE THE ORDERS OF LD. CIT( A) AND HAS RESTORED ALL THE ISSUES TO THE FILE OF THE AO, VIDE ITS ORDER DATED 26.3.2010. ACCORDINGLY THE LD. AR PRAYED THAT THE PRESENT APPEALS RELATING TO THE QUANTUM PROCEEDINGS AS WELL I.T.A. NO.3060 TO 3062/MUM/2012 4 AS THE PENALTY APPEAL RELATING TO THE ASSESSMENT YE AR 2003-04, BE RESTORED TO THE FILE OF AO. THE LD. DR DID NOT OBJECT TO THE PLEA PUT FORTH BY THE LD. AR. 5. WE HAVE PERUSED THE ORDER PASSED BY THE CO-ORDIN ATE BENCH OF TRIBUNAL IN THE ASSESSEES OWN CASE IN AY 2000-01 TO 2002-03 AND NOTICE THAT THE TRIBUNAL HAS SET ASIDE ALL THE ISSUES TO THE FILE O F THE AO FOR CONSIDERING THEM AFRESH. THE FACT THAT THE ISSUES ARE IDENTICAL IN NATURE IS ALSO NOT DISPUTED. HENCE, WE FIND MERIT IN THE SUBMISSIONS MADE BY LD. AR. ACCORDINGLY, WE SET ASIDE THE ORDERS OF LD. CIT(A) PASSED IN QUANTUM AS SESSMENT PROCEEDINGS IN AY 1999-2000 AND 2003-04 AND RESTORE ALL THE MATTERS T O THE FILE OF AO WITH THE DIRECTION TO EXAMINE THEM AFRESH AFTER GIVING NECES SARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. SINCE THE QUANTUM ASSESSMENT RELATING TO AY 2003-04 IS SET ASIDE, THE PENALTY ORDER PASSED U/S 271(1)(C) FOR THAT YEAR DOES NOT H AVE INDEPENDENT LEG TO STAND. HENCE THE ORDER OF LD CIT(A) IN RESPECT OF PENALTY ORDER RELATING TO AY 2003-04 IS SET ASIDE. HOWEVER, WE MAY MAKE IT CLEAR THAT T HE AO, IF HE CONSIDERS IT NECESSARY, MAY INITIATE PENALTY PROCEEDINGS U/S 271 (1)(C) IN THE SET ASIDE PROCEEDINGS. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN CO URT ON 29TH OCT, 2014 . ,- ( . /0 1 2 29 TH OCT, 2014 - ' 7) 8 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER / ( ) MUMBAI: 29TH OCT,2014. . . ./ SRL , SR. PS I.T.A. NO.3060 TO 3062/MUM/2012 5 ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. ( :* ( ) / THE CIT(A)- CONCERNED 4. ( :* / CIT CONCERNED 5. 6. ;< 7 !*= , + = , / ( ) / DR, ITAT, MUMBAI CONCERNED 7 > ) / GUARD FILE. ? ( / BY ORDER, TRUE COPY @ $ (ASSTT. REGISTRAR) + = , / ( ) /ITAT, MUMBAI