MAHARASHTRA STEELS ROLLING MILLS P.LTD, MUMBAI V. DC CC 35, MUMBAI

ITA 3325/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1354 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAM IT KOCHAR, ACCOUNTANT MEMBER ITA NO.3325/MUM/2013 ASSESSMENT YEAR: 2005-06 M/S MAHARASHTRA STEELS ROLLING MILLS PVT. LTD. 190, LBS MARG, BHANDUP (WEST), MUMBAI-400078 / VS. DCIT, CENTRAL CIRCLE-35, MUMBAI ( /ASSESSEE) ( ' / REVENUE) PAN. NO.AABCM6109Q # '$ % & / DATE OF HEARING : 29/12/2016 % & / DATE OF ORDER: 23/01/2017 !' / ASSESSEE BY NONE ' !' / REVENUE BY MS. RAMA PRIYA RAGHAVANDR ITA NO. 3325/MUM/2013 M/S MAHARASHTRA STEELS ROLLING MILLS PVT. LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 15/11/2012 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. 2. DURING HEARING OF THIS APPEAL, NONE WAS PRESENT FOR THE ASSESSEE, IN SPITE OF THE FACT THAT THE APPEAL WAS FILED BY THE ASSESSEE ON 30/04/2013 AND WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE ON 05/08/2014, 23/07/2015, 17/02/2016 AND 11/08/2016. TODAY AT THE TIME OF HEARING, NEITHER ANYBODY APPEARED FOR THE ASSESSEE NOR MOVED ANY ADJOURNMENT PETITION. UNDER THE CIRCUMSTA NCES, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE AND TEND TO DISPOSE OFF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ON THE OTHER HAND, TH E LD. DR, MS. RAMA PRIYA RAGHAVAN, DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFFICER AND CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). 2.1. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFOR E US, THE ASSESSEE HAS RAISED THE GROUND WITH RESPECT TO PASSING AN EX-PARTE ORDER AND THUS, THERE IS VIOLATION OF N ATURAL JUSTICE. THE DISALLOWANCES U/S 40A(2)(B) AMOUNTING TO RS.45,37,486/- ON ACCOUNT OF PAYMENT OF CONVERSION AND JOB CHARGES HAS ALSO BEEN CHALLENGED ON MERIT. WE F IND THAT ASSESSMENT ORDER WAS FRAMED U/S 143(3) R.W.S. 263 O F THE ACT, WHICH WAS CHALLENGED BEFORE THE LD. COMMISSION ER OF ITA NO. 3325/MUM/2013 M/S MAHARASHTRA STEELS ROLLING MILLS PVT. LTD. 3 INCOME TAX (APPEAL). IT IS NOTED THAT THE APPEAL O F THE ASSESSEE WAS POSTED FOR HEARING ON 02/09/2011 AND 09/11/2011 RESPECTIVELY AND THERE WAS NO RESPONSE F ROM THE ASSESSEE. THE APPEAL WAS ADJOURNED TO 02/01/201 2. NOTICE WAS ALSO ISSUED AS LAST OPPORTUNITY. THE AS SESSEE MOVED APPLICATION FOR ADJOURNMENT ON MEDICAL GROUND AND THE APPEAL WAS ADJOURNED TO 13/01/2012. THE APPEAL WAS TAKEN FOR HEARING ON 12/03/2012, 25/10/2012 AND 15/11/2012. THE ASSESSEE DID NOT APPEAR, THUS, THE APPEAL WAS ADJUDICATED BY THE LD. COMMISSIONER OF INCOME T AX (APPEAL). UNDER THESE CIRCUMSTANCES, BROADLY, WE A RE IN AGREEMENT WITH THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) THAT HE HAD NO OPTION BUT WAS CONSTRAINT TO PASS THE EX-PARTE ORDER. IDENTICAL I S THE SITUATION BEFORE US AS THE ASSESSEE IS MERELY KEEP ON ASKING FOR ADJOURNMENT AS DISCUSSED ABOVE. HOWEVER, BY TAKING A LENIENT VIEW, WE REMAND THIS APPEAL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) TO DECI DE THE APPEAL ON MERIT AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. KEEPING IN VIEW, THE CASUAL APPROACH OF THE ASSESSEE, THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEAL) WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. TH E LD. FIRST APPELLATE AUTHORITY WILL BE FREE TO DECIDE T HE APPEAL ON THE DATE WHEN THE ASSESSEE APPROACHES THE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL), WITHIN THE STIPULATED PERIOD MENTIONED ABOVE OR ON A MUTUALLY PRE- ITA NO. 3325/MUM/2013 M/S MAHARASHTRA STEELS ROLLING MILLS PVT. LTD. 4 DECIDED DATE. IF THE ASSESSEE STILL CHOOSES NOT TO APPEAR BEFORE THE FIRST APPELLATE AUTHORITY, THE LD. COMMI SSIONER OF INCOME TAX (APPEAL) IS FREE TO PASS ANY ORDER IN ACCORDANCE WITH LAW ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 29/12/2016. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) #'$ / ACCOUNTANT MEMBER %'$ /JUDICIAL MEMBER # $ MUMBAI; ' DATED : 23/01/2017 F{X~{T? P.S / /. . . &%'()*)+' / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. / / # 0 ( )* ) / THE CIT, MUMBAI. 4. / / # 0 / CIT(A)- , MUMBAI, 5. 2'3 - , / )*& ) 4 , # $ / DR, ITAT, MUMBAI 6. 5 6$ / GUARD FILE. ' / BY ORDER, .2* - //TRUE COPY// /' (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI