M/S. DIVINE HOLDINGS PVT. LTD, MUMBAI V. THE ACIT CEN CIR-31, MUMBAI

ITA 3078/MUM/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2621 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 21-12-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 20-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: NILESH MEHTA
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'K' BENCH, MUMBAI BEFORE SHRI P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 3078/MUM/2007 (ASSESSMENT YEAR: 2002-03) M/S. DIVINE HOLDINGS PVT. LTD. ACIT, CRICLE 31 32, MADHULI, 3RD FLOOR MUMBAI DR. ANNIE BESANT ROAD, NEHRU VS. CENTRE , WORLI, MUMBAI 400018 PAN - AAACD 4959 J APPELLANT RESPONDENT APPELLANT BY: SHRI NILESH MEHTA RESPONDENT BY: DR. P. DANIEL O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- IV, MUMBAI DATED 15.12.2007 PERTAINING TO A.Y. 2002-03. 2. THOUGH 11 GROUNDS ARE URGED BEFORE US, AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT GRO UND NO. 4 IS A MATERIAL GROUND AND UPON DISPOSAL OF THE SAID GROUN D, THERE IS NO NEED TO CONSIDER THE OTHER GROUNDS INDEPENDENTLY. GROUND NO.4 READS AS UNDER: - 4. THE LEARNED COMMISSIONER OF INCOME-TAX HAS ERRE D IN LAW AND IN FACTS IN DISREGARDING ADDITIONAL EVIDENCES PRODUCED BY THE APPELLANT AND NOT ADMITTING THE SAME UNDER RULE 46A OF THE IT RULES. 3. THE CASE OF THE ASSESSEE IS THAT ALL THE FILES O F THE ASSESSEE WERE ASSIGNED UNDER COURTS DIRECTION TO THE CUSTODIAN A PPOINTED BY THE COURT WHO HAS TO ATTEND TO THE DAY TO DAY AFFAIRS OF THE COMPANY. THE SAID ITA NO. 3078/MUM/2007 2 CUSTODIAN DID NOT FURNISH RELEVANT DETAILS BEFORE T HE A.O. DESPITE CONSTANT EFFORTS TO OBTAIN INFORMATION FROM THE CUSTODIAN SO AS TO ASSIST THE AO. THE ASSESSMENTS WERE ULTIMATELY COMPLETED UNDER SECTION 144 OF THE ACT FOR THE ASST. YEARS 2002-03 AND 2003-04. 4. UNDER IDENTICAL FACTS AND CIRCUMSTANCES, THE ITAT, MUMBAI BENCH- A, IN THE CASE OF M/S. TREASURE HOLDINGS P. LTD. (BUN CH OF 41 APPEALS WHEREIN THE ASSESSEE IS ALSO ONE OF THE PARTIES), SET ASIDE THE MATTER TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION CONSIDERING THE PECUL IAR CIRCUMSTANCES OF THE CASE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUB MITTED THAT IN THE IMPUGNED APPEAL THE ASSESSEES CASE IS ON A STRONGE R FOOTING INASMUCH AS THE ASSESSEE COULD MANAGE TO OBTAIN THE RELEVANT MA TERIAL BY THE TIME THE APPEALS WERE TAKEN UP FOR HEARING BY THE LEARNED CI T(A) BUT THE LEARNED CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVIDENCE OVE RLOOKING THE FACT THAT UNDER IDENTICAL CIRCUMSTANCES THE ITAT FOUND THAT THE NON-CO-OPERATION BY THE ASSESSEE WAS FOR BONA FIDE REASONS. THE LEARNED COUNSEL ALSO PLACED ON RECORD THE ORDER OF THE ITAT MUMBAI G BENCH IN TH E CASE OF M/S. ZEST HOLDINGS PVT. LTD. FOR ASSESSMENT YEARS 2002-03 & 2 003-04 DATED 10 TH NOVEMBER 2009 WHERE ON SIMILAR ISSUE THE MATTER WAS RESTORED BACK TO THE CIT(A) FOR ADMITTING THE ADDITIONAL EVIDENCE AND DE CIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 5. THE LEARNED D.R. FAIRLY ADMITTED THAT THE ISSUE STA NDS SQUARELY COVERED BY THE ORDERS OF THE TRIBUNAL CITED ABOVE. 6. CONSIDERING THE CIRCUMSTANCES OF THE CASE, WE DEEM IT FAIR AND REASONABLE TO SET ASIDE THIS APPEAL TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION BY TAKING ON RECORD THE MATERIAL ALREA DY FURNISHED BEFORE HIM. IN OTHER WORDS, THE CIT(A) IS DIRECTED TO ADMIT THE ADDITIONAL EVIDENCE AND RE-CONSIDER THE APPEALS IN ACCORDANCE WITH LAW. IN THE LIGHT OF OUR DIRECTION WHILE DISPOSING OF GROUND NO.4, THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT SERIOUSLY PRESSED FOR CONSIDERATION OF THE OTHER GR OUNDS AS THESE WOULD BECOME ACADEMIC AS THE APPEAL IS RESTORED TO THE FI LE OF CIT(A). NEEDLESS TO ITA NO. 3078/MUM/2007 3 OBSERVE THAT THE CIT(A) WOULD GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD BEFORE DISPOSING OF THE APPEALS AFRESH. 7. IN THE RESULT, APPEAL IS TREATED AS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER 2009. SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH DECEMBER 2009 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) IV, MUMBAI 4. THE CIT II, MUMBAI CITY 5. THE DR, K BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P. ITA NO. 3078/MUM/2007 4 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.12.09 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 23.12.09 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 FILE SENT TO THE BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER