HSCL-SIPL(JV), Nagpur V. DCIT, CIR-8, Nagpur

ITA 319/NAG/2013

• Counselvise Citation: 31923914 RSA 2013
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITI JAIN DAS
• Assessee Lawyers: M MANI
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences; Right to appeal
• Section: 144

Judgement Text

, , ( - ), IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENC H, (E-COURT), MUMBAI . . , !' , #$% , $& '( BEFORE SHRI H L KARWA, PRESIDENT, & SHRI RAJENDRA, AM ./ITA NO.319/NAG/2013 ( ) * / ASSESSMENT YEAR :2007-08) M/S. HSCL - SIPL, 25, SHRICON HOUSE, PRAGATI LAYOUT, RAJEEVNAGAR SOMALWADA, NAGPUR- 25 PAN : AAAAH2059M VS. THE DY. CIT CIR.8, NAGPUR ( +, /APPELLANT) ( -.+, / RESPONDENT) APPELLANT BY : MR. M MANI RESPONDENT BY : MS. PRITI JAIN DAS DATE OF HEARING : 22.01.2014 DATE OF PRONOUNCEMENT : 22.01.2014 '$/ / O R D E R PER H L KARWA, PRESIDENT : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-II, NAGPUR, DATED 01.03.2013, CONFIRMING THE PENALTY OF RS.1,12,58,252/- IMPOSED U/S. 217(1)(C) OF THE I.T.ACT, 1961 (IN SHORT THE ACT) F OR A.Y. 2007-08. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED ITS RETURN OF INCOME ON 30.10.2007 DECLARING INCOME AT RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY AND ORDER U/S. 144 OF THE ACT WAS PASSED ON 09.12.2 009 DETERMINING TOTAL INCOME AT 2 ITA NO.319/NAG/2013 AY:2007-08 RS.NIL AND NO LOSSES WERE ALLOWED TO BE CARRIED FOR WARD. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE HAD CLAIMED BUSINESS LOSS OF R S.3,41,89,203/-. THERE WAS NO SUPPORTING EVIDENCE AND, THEREFORE, THE BUSINESS LO SS CLAIMED BY THE ASSESSEE WAS DISALLOWED AND THE INCOME WAS TREATED AS NIL WITH THE DIRECTION THAT NO BROUGHT FORWARD LOSSES COULD BE CARRIED FORWARD. THE ASSES SING OFFICER VIDE ORDER DATED 20.06.2010 IMPOSED A PENALTY OF RS.1,12,68,252/- U/ S. 271(1)(C) OF THE ACT FOR CONCEALING PARTICULARS OF INCOME. 3. ON APPEAL, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER AND, HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE CIT(A ) HAS PASSED IMPUGNED ORDER WITHOUT AFFORDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN OTHER WORDS, THE CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX-PA RTE. IT IS WELL SETTLED LAW THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRIN G SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE T HE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. SHRI M MAN I, THE LEARNED COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE QUANTUM APPEAL FILED A GAINST THE ASSESSMENT ORDER IS PENDING BEFORE THE CIT(A) FOR ADJUDICATION. HE THE REFORE SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE CIT(A) FOR ADJUD ICATION AFRESH AFTER DECIDING THE QUANTUM APPEAL OF THE ASSESSEE. 5. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE, WE ARE OF THE OPINION THAT BEFORE DECIDING THE APPEAL OF THE ASSE SSEE, THE LEARNED CIT(A) HAS NOT AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND, THEREFORE, WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS, IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 3 ITA NO.319/NAG/2013 AY:2007-08 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE E-COURT ON THIS 22 ND DAY OF JANUARY, 2014. SD/- SD/- (RAJENDRA) (H L KARWA) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DT : 22 ND JANUARY, 2014 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR, NAGPUR BENCH BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI