WORLDLINK FINANCE LTD, MUMBAI V. DCIT 7(3), MUMBAI

ITA 3521/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7606 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 1991-1992
• Appeal Filed On: 29-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJNESH ARVIND
• Keywords: Depreciation; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI R.K. PAND A ,(AM) ITA NO.3521/MUM/2009 ASSESSMENT YEAR : 1991-92 WORLDLINK FINANCE LIMITED PREM SAGAR BUILDING, GROUND FLOOR 7-7B, NESBIT ROAD MAZGAON MUMBAI-400 010. ..( APPELLANT ) P.A. NO. (AAACM 4973 B) VS. DY. COMMISSIONER OF INCOME TAX -7(3) MUMBAI. ..( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHR I RAJNESH ARVIND O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 17.2.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 1991-92. 2. AT THE TIME OF HEARING NONE WAS PRESENT ON BEHALF OF THE ASSESSEE NOR FILED ANY APPLICATION FOR ADJOURNMENT OF T HE CASE DESPITE THE FACTS THAT NOTICE OF DATE OF HEARING FIXING THE CA SE FOR 4.2.2010 WAS SENT BY RPAD. IT WAS THEREFORE, DECIDED TO DISPOSE O F THE APPEAL EXPARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LD. DR WHO ITA NO.3521/M/09 A.Y:91-92 2 SUPPORTED THE ORDER OF THE AO AND THE LD. CIT(A) IN SUSTAINING THE PENALTY OF RS.30,41,200/- OUT OF PENALTY OF RS.60,8 2,400/- IMPOSED BY THE AO U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961( THE ACT). 3. WE HAVE CAREFULLY HEARD THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO HAS IMPOSED P ENALTY U/S.271(1)(C) ON THE DISALLOWANCE OF DEPRECIATION OF RS.7 6,02,988/-. WE FURTHER FIND THAT IT HAS BEEN INTERALIA MENTIONED BY THE LD. CIT(A) THAT THE ASSESSEE WAS PROVIDED VARIOUS OPPORTUNITIES TO RE PRESENT HIS CASE. HOWEVER DESPITE VALID SERVICE, THERE WAS NO COMPLIA NCE BY THE ASSESSEE. THEREFORE, THE LD. CIT(A) DECIDED THE APPEAL EXPARTE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. FROM THE READIN G OF PARA-1.16 OF THE ORDER OF THE LD. CIT(A) WE FIND THAT THE LD. CI T(A) HAS DECIDED THE APPEAL WITHOUT CONSIDERING THE ORDER OF THE FIRST APPE LLATE AUTHORITY AND THE TRIBUNAL IN THE QUANTUM APPEAL. THE LD. CI T(A) MERELY ON THE BASIS OF SUSTENANCE OF DISALLOWANCE OF DEPRECIATION HAS SUSTAI NED THE LEVY OF PENALTY. SINCE THE ISSUE HAS NOT BEEN PROPERL Y EXAMINED BY THE LD. CIT(A) WHILE PASSING EXPARTE ORDER, THEREFORE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE ONE MORE OPPORTUN ITY BE PROVIDED TO THE ASSESSEE AT THE END OF LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ACCOUNT AND SEND B ACK THE MATTER TO THE FILE OF THE LD. CIT(A), WHO SHALL DECID E THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPOR TUNITY OF BEING ITA NO.3521/M/09 A.Y:91-92 3 HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE A RE THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.2.2010. SD/- SD/- ( R.K. PANDA ) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 17.2.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 4.2.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 5.2.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 17.2.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 18.2.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER