ANAND I-POWER LTD, MUMBAI V. ASST CIT 5(2), MUMBAI

ITA 3387/MUM/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0897 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 09-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Assessee Lawyers: H P MAHAJANI; PRASAD BAPAT
• Section: 143(3); 147

Judgement Text

1 ANAND I POWER TD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI JOGINDER SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.3387 & 3388/MUM/2017 (ASSESSMENT YEAR: 2000-01) ANAND I POWER LIMITED (FORMERLY KNOWN AS PERFECT CIRCLE INDIA LTD, 10, PRASAD CHAMBERS, OPERA HOUSE MUMBAI-400 004 PAN : AAACP0482E VS ADDL. COMMISSIONER OF INCOME-TAX- 5(2), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI HP MAHAJANI & SHRI PRASAD BAPAT RESPONDENT BY SHRI R.P. MEENA DATE OF HEARING 03-10-2018 DATE OF PRONOUNCEMENT 03-10-2018 O R D E R PER G MANJUNATHA, AM : THESE TWO APPEALS ARE FILED BY THE ASSESSEE. APPE AL IN ITA NO.3387/MUM/2017 IS AN APPEAL FILED AGAINST PENALTY LEVIED US 271(1)(C) AND ARISE OUT OF THE ORDER OF THE CIT(A)-10, MUMBAI DATED 19-01-2017 WHEREAS APPEAL IN ITA NO.3388/MUM/2017 IS QUANTUM A PPEAL AND ARISES OUT OF THE ORDER OF CIT(A)-10, MUMBAI ALSO D ATED 19-01-2017. BOTH THE APPEALS PERTAIN TO ASSESSMENT YEAR 2000-01 . SINCE BOTH THE APPEALS ARE INTERCONNECTED, FOR THE SAKE OF CONVENI ENCE, THESE APPEALS 2 ANAND I POWER TD WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COM MON ORDER. ITA 3388/MUM/2017 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE O F PISTON CIRCLES FILED ITS RETURN OF INCOME FOR AY 2000-01 ON 29-11-2000 D ECLARING TOTAL INCOME OF RS.73,97,366. THE RETURN WAS PROCESSED U /S 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS REOPENED U/S 147 O F THE ACT AND THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 OF T HE ACT ON 10-03- 2005 DETERMINING TOTAL INCOME AT RS.5,97,65,571 INT ERALIA MAKING VARIOUS ADDITIONS / DISALLOWANCES. THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE C IT(A), VIDE HIS ORDER DATED 26-07-2005 DISMISSED APPEAL FILED BY THE ASSE SSEE ON THE GROUND THAT THERE WAS DELAY IN FILING APPEAL FOR WHICH THE ASSESSEE HAS NOT OFFERED ANY SUFFICIENT AND VALID GROUNDS FOR CONDON ATION OF DELAY. THE ASSESSEE CARRIED THE MATTER IN FURTHER APPEAL BEFOR E ITAT. THE ITAT VIDE ORDER DATED 15-04-2009 HAS CONDONED DELAY IN F ILING APPEAL BEFORE THE CIT(A) AND SET ASIDE THE FILE TO THE CIT(A) FOR DISPOSAL ON MERITS. CONSEQUENT TO THE DIRECTIONS OF THE ITAT, THE CIT(A ) HAS POSTED THE CASE FOR HEARING ON 20-01-2016. IN RESPONSE TO NOT ICE, SHRI PRASAD BAPAT, CA AND AR APPEARED FOR HEARING AND SOUGHT AD JOURNMENT. THEREAFTER, THE ASSESSEE NEITHER APPEARED NOR FILED ANY DETAILS INSPITE OF 3 ANAND I POWER TD NUMBER OF OPPORTUNITIES GIVEN BY POSTING THE CASE FOR HEARING ON 7 OCCASIONS. THEREFORE, THE LD.CIT(A) DISPOSED OF TH E APPEAL FILED BY THE ASSESSEE EXPARTE ON THE GROUND THAT MERE FILING APP EAL WITHOUT PROSECUTING EFFECTIVELY DID NOT SERVE THE PURPOSE. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE U S. 3. THE LD.AR FOR THE ASSESSEE, AT THE TIME OF HEARI NG SUBMITTED THAT THE LD.CIT(A) WAS ERRED IN DISMISSING THE APPEAL FO R ALLEGED NON APPEARANCE BY THE ASSESSEE, WHEREAS IN TERMS OF SEC TION 251(1)(A) OF THE ACT, THE LD.CIT(A) HAS NO SUCH POWER AND OUGHT TO HAVE PASSED ORDER ON MERITS OF THE CASE. THE LD.AR FURTHER SUB MITTED THAT THE ITAT, IN ITS ORDER DATED 15-04-2009 HAD GIVEN CATEGORICAL DIRECTION TO THE CIT(A) TO PASS THE ORDER ON MERITS. HOWEVER, THE L D.CIT(A) HAS AGAIN DISMISSED THE APPEAL ON TECHNICAL REASONS FOR NON A PPEARANCE. THE LD.AR FURTHER SUBMITTED THAT THE ASSESSEE HAS ATTEN DED ON 20-01-2016 AND FILED A PAPER BOOK CONTAINING VARIOUS DETAILS T O JUSTIFY ITS CASE, BUT THE LD.CIT(A) HAS PASSED ORDER EXPARTE WITHOUT CONS IDERING THE EVIDENCES FILED BY THE ASSESSEE AND HENCE, THE CASE MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A) TO DECIDE ON MERITS. 4. THE LD.DR, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE IS A HABITUAL DEFAULTER IN ATTENDING THE PROCEEDINGS BEF ORE THE CIT(A) WHICH IS EVIDENT FROM THAT FACT THAT THE CIT(A) HAS GIVEN NUMBER OF 4 ANAND I POWER TD OPPORTUNITIES BY POSING THE CASE OF HEARING ON VARI OUS DATES AS NARRATED IN HIS ORDER, BUT THE ASSESSEE NEITHER APPEARED NOR FILED ANY DETAILS. THEREFORE, GIVING ANOTHER CHANCE TO THE ASSESSEE WI LL NOT SERVE ANY PURPOSE AND ACCORDINGLY ORDER PASSED BY THE LD.CIT( A) SHOULD BE UPHELD. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT THE LD.CIT( A) HAS GIVEN 7 DATES OF HEARING TO THE ASSESSEE, BUT THE ASSESSEE APPEARED ON SOME DATES AND FILED ADJOURNMENT APPLICATION WITHOUT FILING ANY DE TAILS. THEREFORE, WE CANNOT FIND FAULT WITH THE ORDER PASSED BY THE LD.C IT(A) WHEN THE ASSESSEE DID NOT APPEAR ON THE DATES GIVEN FOR HEAR ING. BUT FACT REMAINS THAT ALTHOUGH THE ITAT HAS SET ASIDE THE FI LE TO THE CIT(A) TO DECIDE THE ISSUES ON MERITS, LD.CIT(A) HAS DISMISSE D APPEAL FILED BY THE ASSESSEE ON TECHNICAL GROUNDS FOR NON APPEARANCE WI THOUT DISCUSSING THE ISSUES ON MERITS IN SPITE OF A CATEGORICAL DIRE CTIONS FROM THE ITAT. FURTHER, THE ASSESSEE CLAIMS THAT IT HAS FILED VARI OUS DETAILS IN THE FORM OF PAPER BOOK ON 20-01-2016 AND THE CIT(A) HAS NOT CONSIDERED ANY EVIDENCE BEFORE PASSING THE ORDER. THEREFORE, WE A RE OF THE CONSIDERED VIEW THAT THE ISSUE NEEDS TO BE CONSIDERED ONCE AGA IN BY THE LD.CIT(A) IN THE LIGHT OF EVIDENCE FILED BY THE ASSESSEE VIDE ITS LETTER DATED 20-01- 2016. HOWEVER, THE ASSESSEE CANNOT BE GIVEN A SECO ND CHANCE BEFORE 5 ANAND I POWER TD THE CIT(A) UNLESS THE LOSS OF PRECIOUS TIME IS SUIT ABLY COMPENSATED WITH COST. THEREFORE, WE ARE OF THE CONSIDERED VIEW THA T THE ASSESSEE SHALL PAY A COST OF RS.20,000 AND SUCH COST SHALL BE PAID ON OR BEFORE 15 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER TO THE PRIME MINISTERS RELIEF FUND. THE PROOF OF PAYMENT TO THE PRIME MINISTERS RELIEF FUND SHALL BE PRODUCED BEFORE THE LD.CIT(A) BEFORE TAKING UP THE APPEAL FOR HEARING. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEE SHALL A PPEAR BEFORE THE LD.CIT(A) WITHOUT SEEKING ANY ADJOURNMENT. ACCORDI NGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED, FOR STATISTICAL P URPOSE. ITA 3387/MUM/2017 6. THIS APPEAL ARISE OUT OF ORDER PASSED BY THE LD. CIT(A)-V, MUMBAI, VIDE HIS ORDER DATED 19-01-2017, ALLOWING PARTIAL R ELIEF TOWARDS PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME-TAX AC T, 1961. SINCE, WE HAVE SET ASIDE THE QUANTUM APPEAL TO THE FILE OF TH E LD.CIT(A) TO DECIDE ON MERITS, CONSEQUENTIAL PENALTY LEVIED BY THE AO U /S 271(1)(C) IS ALSO RESTORED TO THE FILE OF THE LD.CIT(A) FOR FRESH CON SIDERATION AFTER THE OUTCOME OF QUANTUM APPEAL FILED BY THE ASSESSEE AGA INST ORDER PASSED BY THE AO MAKING VARIOUS ADDITIONS / DISALLOWANCES. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND DIR ECT HIM TO CONSIDER THE PENALTY APPEAL AFTER DECIDING THE QUANTUM APPEA L ON MERITS. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL 6 ANAND I POWER TD PURPOSE. 8. AS A RESULT, BOTH THE APPEALS FILED BY THE ASSES SEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD OCTOBER, 2018. SD/- SD/- (JOGINDER SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 03 RD OCTOBER, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI