M/S JAI RAMA PLASTICS, MUMBAI V. ITO 23(2)(3), MUMBAI

ITA 391/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6273 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 15-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MACHINERY OF RS
• Keywords: Opportunity of being heard; Set aside
• Section: 201; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL , AM / I.T.A. NO. 391 /MUM/20 20 ( / ASSESSMENT YEAR: 20 1 1 - 1 2 ) M/S. JAI RAMA PLASTICS B/402, VARDHMAN NAGAR, DR. R. P. ROAD, MULUND, (W), MUMBAI - 400080 . / VS. ITO - 23(2)(3) C - 10, 2 ND FLOOR, ROOM NO.204, PRATYAKSHAKAR BHAWAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. ./ ./ PAN/GIR NO. : AAEFJ2226R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 22 / 07 /202 1 /DATE OF PRONOUNCEMENT: 03 /09 /2021 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 04 . 1 0 . 201 9 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 40 , MUMBAI (HEREINAFTER REFERRED TO AS THE CIT( A)) RELEVANT T O THE A.Y.20 11 - 1 2 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ORDER PASSED WITHOUT SERVICE OF NOTICE HEARING 2. SHORT TERM CAPITAL GAIN OF RS.12,96,500 ON SALE OF FACTORY PREMISES 3. ADDITION OF WDV OF PLANT & MACHINERY OF RS.3,51,408/ - AND DI SALLOWANCE OF LOSS ON SALE OF PLANT AND MACHINERY OF RS.3,28,718/ - ASSESSEE BY : SHRI PRADIP KAPASI (AR) REVENUE BY: MS. USHA GAIKWAD ( D R) ITA NO. 391 /M UM /20 20 A.Y.20 1 1 - 12 2 4. ADDITION/DISALLOWANCE OF BUSINESS LOSS RS.13,98,818/ - ON SALE OF STOCK 5. DISALLOWANCE OF RS.10,53,151/ - ON ACCOUNT OF WAGES, SALARY & BONUS EXPENSES 6. DISALLOWANCE OF RS.18,05,700 ON A CCOUNT OF RETRENCHMENT EXPENSES 7. ADDITION OF RS.1,08,000/ - AS RENTAL INCOME. 3 . WE HAVE HEARD THE ARGUMENT S ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, T HEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIF IABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE O RDER OF THE CIT(A) DATED 04 . 1 0 .201 9 PASSED BY THE CIT(A) , WE FIND THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE /REPRESENTATIVE OF THE A SSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE ACCORDANCE WITH LAW . A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW . 4 . FOR THIS PROPOSITION WE PLACE D RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUD ALIAR (1969) 74 ITR 1 (SC) ITA NO. 391 /M UM /20 20 A.Y.20 1 1 - 12 3 5 . ACCORDINGLY IN THE INTEREST OF JUSTICE , WE REMIT THE ISSUE RAISED IN THE APPEAL TO THE FILE OF THE LD. CIT(A). LD. CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING AFTER GIVING A PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A ) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR S TATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 03 / 09 /202 1 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (AMARJIT SINGH ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 03 / 09 /202 1 VIJAY PAL SINGH (SR. PS) ITA NO. 391 /M UM /20 20 A.Y.20 1 1 - 12 4 / 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