SILVER OAK FINSTOCK P.LTD, MUMBAI V. ITO 9(3)(2), MUMBAI

ITA 371/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3932 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI .. , ! , '# ' $ BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 371/MUM/2012 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR: 2008-09) SILVER OAK FINSTOCK PRIVATE LIMITED A/603, RAJLAXMI C.H.S, CHIKUWADI, BORIWALI (W), MUMBAI-400 092 & & & & / VS. ITO 9(3)(2), MUMBAI ) '# ./ * ./ PAN/GIR NO. AAKCS 4784 J ( )+ / APPELLANT ) : ( ,-)+ / RESPONDENT ) )+ . ' / APPELLANT BY : NONE ,-)+ / . ' / RESPONDENT BY : SHRI AARSI PRASAD & / 01# / // / DATE OF HEARING : 18.07.2013 2 ( / 01# / DATE OF PRONOUNCEMENT : 18.07.2013 '3 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-20, MUMBAI (CIT(A) FOR SH ORT) DATED 14.09.2011, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2008-09 VIDE ORDER DATED 31.12.2010. 2 ITA NO.371/MUM/2012 (A.Y. 2008-09) SILVER OAK FINSTOCK PRIVATE LIMITED VS. ITO 2.1 NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE WHEN ITS APPEAL WAS CALLED OUT FOR HEARING, EVEN AS PROOF OF SERVICE OF NOTICE OF HEAR ING IS ON RECORD. EVEN ON THE EARLIER OCCASION, I.E., 10.01.2013, THERE WAS NO REPRESENTA TION BY THE ASSESSEE, EVEN AS THE POSTING FOR THAT DATE STOOD COMMUNICATED TO THE ASS ESSEE PER THE ACKNOWLEDGEMENT-CUM- NOTICE ISSUED BY THE REGISTRY OF THE TRIBUNAL ON TH E FILING OF THE APPEAL ITSELF. THERE IS EVEN NO LETTER OF AUTHORITY ON RECORD, THOUGH THE A PPEAL STANDS FILED AS FAR BACK AS ON 16/1/2012. UNDER THE CIRCUMSTANCE, THEREFORE, EVEN AS ARGUED BY THE LD. DR BEFORE US, THE ASSESSEES APPEAL MERITS AN IN LIMINE DISMISSAL, AS ALSO OBSERVED BY THE LD. CIT(A) VIDE PARA 3.1 OF HIS IMPUGNED ORDER WITH REFERENCE TO TH E DECISION BY THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT [1997] 223 ITR 480 (MP) AND BY THE TRIBUNAL (DELHI BENCH) IN T HE CASE OF CIT VS. MULTIPLAN INDIA (P.) LTD ., REPORTED AT 38 ITD 320. WE ALSO NOTE THAT THE DI SALLOWANCE UNDER REFERENCE HAS BEEN MADE AND SUSTAINED DUE TO THE FAILURE OF THE A SSESSEE IN FURNISHING THE RELEVANT DETAILS IN RESPECT OF THE LOSS ON SHARES AS CLAIMED , SO THAT BOTH THE AUTHORITIES BELOW WERE IN FACT CONSTRAINED TO ACT IN THE MANNER THEY DID, AND THEIR ACTION, UNLESS THE FACTS AS RECORDED ARE NOT CORRECT, IS THEREFORE LEGALLY SUST AINABLE. 2.2 AT THE SAME TIME, IT CANNOT BE LOST SIGHT OF TH AT THERE HAS BEEN NO ADJUDICATION ON THE MERITS OF THE DISALLOWANCE, I.E., PER SE , WHICH IS THE EMPHASIS OF S. 250(6). THE RESPONSIBILITY FOR THE SAME THOUGH LIES SQUARELY ON THE ASSESSEE; IT FAILING TO, DESPITE REPEATED OPPORTUNITIES, REPRESENT ITSELF, MUCH LESS SUBSTANTIATING ITS CASE AS RAISED BEFORE THE FIRST APPELLATE AUTHORITY, MOVING IT TO DISPOSE ITS APPEAL PER AN EX PARTE ORDER, CONFIRMING THE ASSESSMENT IN THE ABSENCE OF ANY MAT ERIALS. IN FACT, THERE HAS BEEN NO REPRESENTATION EVEN BEFORE US, THE SECOND APPELLATE AUTHORITY, WHICH STANDS MOVED BY THE ASSESSEE OSTENSIBLY ON BEING AGGRIEVED BY THE IMPUG NED ORDER. 2.3 UNDER THE CIRCUMSTANCES, WE, ON A BALANCE AND I N THE INTEREST OF JUSTICE, CONSIDER IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF TH E LD. CIT(A) TO ALLOW THE ASSESSEE A FINAL OPPORTUNITY OF HEARING BEFORE HIM, AND WHO SHALL, I N THE EVENT OF THE ASSESSEE FAILING TO 3 ITA NO.371/MUM/2012 (A.Y. 2008-09) SILVER OAK FINSTOCK PRIVATE LIMITED VS. ITO AVAIL THE SAID OPPORTUNITY, BE AT LIBERTY TO DECIDE THE SAME IN ACCORDANCE WITH LAW. THIS CONCESSION OR INDULGENCE ON OUR PART, WE MAY CLARIF Y, IS ON CONSIDERING THE FACT THAT THE ASSESSEE HAD MOVED THE APPELLATE TRIBUNAL, SO THAT WE WOULD BE SLOW AND CIRCUMSPECT IN PRESUMING NON-EARNESTNESS IN THE MATTER ON ITS PART AND, TWO, THAT THE DISALLOWANCE UNDER REFERENCE, AT RS.14.70 LACS, EXCEEDS THE RETURNED I NCOME OF RS.1.25 LACS MANY TIMES OVER, SO AS TO ELIMINATE ANY SCOPE OF MISCARRIAGE OF JUST ICE; THE QUANTUM ALSO HAVING PENAL IMPLICATIONS. HOWEVER, WE MAY CLARIFY THAT THIS IS ONLY AS A MEASURE OF LAST RESORT, AS THE APPELLATE PROCEEDINGS CANNOT BE ALLOWED TO DEGENERA TE INTO AN ABUSE OF THE PROCESS OF LAW. WE DECIDE ACCORDINGLY. 3. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4 05 & '40 / 6/ 78'9 ' :0 / 0 ;< ORDER PRONOUNCED IN THE OPEN COURT ON JULY 18, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER '# / ACCOUNTANT MEMBER MUMBAI; =& DATED : 18.07.2013 .&../ ROSHANI , SR. PS '3 / ,0> ?'>(0 '3 / ,0> ?'>(0 '3 / ,0> ?'>(0 '3 / ,0> ?'>(0/ COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT 3. @ ( ) / THE CIT(A) 4. @ / CIT CONCERNED 5. >CD ,0& , , / DR, ITAT, MUMBAI 6. DE' F / GUARD FILE '3& '3& '3& '3& / BY ORDER, 7 77 7/ // /; ; ; ; (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI