ALFA DISTILLERIES P.LTD, MUMBAI V. ITO 2(1)(1), MUMBAI

ITA 3593/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9741 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M HEMALATHA
• Assessee Lawyers: NEELAM C JADHAV
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO.3593/MUM/2017 (AY. 2012-13) M/S. ALFA DISTILLERIES PVT. LTD. ALFA HOUSE, 5, GROUND FLOOR, VARMA CHAMBERS, 11, HOMJI STREET, FORT, MUMBAI 400 001 PAN:AAACA5488K ...... APPELLANT VS. THE INCOME TAX OFFICER 2(1)(1), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020. .... RESPONDENT APPELLANT BY : MS. NEELAM C. JADH AV RESPONDENT BY : MS. M. HEMALATHA DATE OF HEARING : 26/07/2017 DATE OF PRONOUNCEMENT : 31/07/2017 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PER TAINING TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-3, MUMBAI DATED 28/02/2017, WHICH IN TURN, ARISES OUT OF ORDER P ASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 20/03/2015. 2. THE LD. REPRESENTATIVE FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE CIT(A) HAS PASSED AN EX-PARTE ORDER ON ACCOUNT OF NON-APPEARANCE OF THE 2 ITA NO.3593/MUM/2017 (AY. 2012-13) ASSESSEE ON THE DATE OF HEARING. THE ASSESSEE HAS FILED AN AFFIDAVIT SIGNED BY THE DIRECTOR OF THE ASSESSEE COMPANY DATED 24 TH JULY,2017, VIDE WHICH HE HAS AFFIRMED THE REASONS FOR NON-APPEARANCE BEFO RE THE CIT(A) ON THE DATE OF HEARING. PARAS 2 TO 6 OF THE AFFIDAVIT REA D AS UNDER:- 2) I SAY THAT THE COMPANYS OFFICE IS LOCATED AT AL FA HOUSE, 5 GROUND FLOOR, VARMA CHAMBERS, 11, HOMJI STREET, FORT, MUMBAI 400 001. DURING THE PERIOD OCTOBER, 2016 TO DECEMBER, 2016 THE OFFICE OF THE COMPANY WA S UNDER REPAIRS & RENOVATION AND WAS OCCUPIED ONLY BY THE WORKERS WHO WERE RENOV ATING THE OFFICE. THE OFFICE STAFF WAS ONLY OFFICE BOYS OF THE APPELLANT COMPANY WHO USED TO OPERATE FROM DIRECTORS HOME WHICH IS LOCATED AT 153 POORANAND C HSG. SOCIETY, CROSS DUNGARSI ROAD, WALKESHWAR, MUMBAI 400006. 3) I SAY THAT THE NOTICE OF HEARING ISSUED ON 24/10 /2016 AND NOTICE ISSUED ON 11/11/2016 MAY HAVE BEEN RECEIVED BY THE WORKERS WH O WAS DOING REPAIRS & RENOVATION WORK OF THE OFFICE ALFA HOUSE, 5, GROUND FLOOR, VARMA CHAMBERS, 11, HOMJI STREET, FORT, MUMBAI -400 001. HOWEVER, THE SAID NOTICES WERE NOT HANDED OVER TO ME. HENCE, WE COULD NOT INFORM OUR CHARTE RED ACCOUNTANT TO REPRESENT THE MATTER. 4) I SAY THAT THE WORKER WHO WAS DOING WORK THERE, MAY NOT AWARE ABOUT THE IMPORTANCE OF THE NOTICE RECEIVED, AND WOULD HAVE F ORGOT TO GIVE THE SAID NOTICES TO ME. 5) I SAY THAT, I CAME TO KNOW ABOUT AN EX-PARTE ORD ER PASSED BY THE CIT(A) ON 28/02/2017 ONLY WHEN THE ORDER WAS RECEIVED BY POST ON 17/03/2017 BY THE OFFICE BOYS. 6) I SAY THAT THE NON-ATTENDANCE WAS NOT DELIBERATE BUT WAS DUE TO THE ABOVE FACTS AND CIRCUMSTANCES WHICH WERE BEYOND THE CONTROL. THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OU T THAT THE ASSESSEE WOULD BE SATISFIED IF THE MATTER IS RESTORED BACK TO THE FILE OF CIT(A) TO BE ADJUDICATED AFRESH ON MERITS AS PER LAW AFTER HEARI NG THE ASSESSEE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT OPP OSED ASSESSEES PLEA FOR REMANDING THE MATTER BACK TO THE FILE OF CIT(A) . 5. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE AFFIDAVIT DATED 24/07/2017(SUPRA). OSTENSIBLY, THE CIT(A) HAS PROCEEDED TO 3 ITA NO.3593/MUM/2017 (AY. 2012-13) DISMISS THE APPEAL OF THE ASSESSEE FOR THE REASON T HAT THE ASSESSEE HAS NOT APPEARED BEFORE HIM ON THE DATE OF HEARING. BE THA T AS IT MAY, IN MY VIEW, THE MANNER IN WHICH THE CIT(A) HAS DISPOSED OF THE APPEAL IS CONTRARY TO THE LEGAL POSITION CONTAINED IN SECTION 250(6) OF THE A CT . A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE APPEAL HAS BEEN DIS MISSED MERELY NOTICING THE ABSENCE OF THE ASSESSEE, WITHOUT DEALING THE GR OUNDS OF APPEAL RAISED BY THE ASSESSEE ON MERITS. SECTION 250(6) OF THE ACT O BLIGATES THE CIT(A) TO DISPOSE OF THE APPEAL BY STATING THE POINTS FOR DET ERMINATION, THE DECISION THEREON AND THE REASONS FOR SUCH DECISION. THE SAI D APPROACH IS CONSPICUOUS BY ITS ABSENCE IN THE IMPUGNED ORDER OF CIT(A). O N THIS GROUND ITSELF, I FIND THAT THE ORDER OF THE CIT(A) IS UNSUSTAINABLE. BE THAT AS IT MAY, I DEEM FIT AND PROPER TO SET ASIDE THE ORDER OF THE CIT(A) AND RE STORE THE MATTER BACK TO HIS FILE FOR ADJUDICATION AFRESH, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1/07/2017 SD/- (G.S. PANNU) ACCOCUNTANT MEMBER MUMBAI, DATED 31/07/2017 VM , SR. PS 4 ITA NO.3593/MUM/2017 (AY. 2012-13) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI