KEM LIQUORS & BEVERAGES P.LTD, THANE V. DCIT RG 8(2), MUMBAI

ITA 3916/MUM/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3454 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-01-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 04-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOMANATH S UKKALI
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND AMARJIT SINGH , JM ./ I.T.A. NO . 3916 / MUM/ 201 2 ( / ASSESSMENT YEA R : 200 4 - 05 ) KEM LIQUORS AND BEVERAGES PRIVATE LIMITED, A/47, ROAD, NO.11, WAGLE INDUSTRIAL ESTATE, THANE, PIN - 400604 / VS. DY. COMMISSIONER OF INCOME TAX, RANGE - 8(2), AAYAKR BHAV AN , M K ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAACK3214H / A SSESSEE BY SHRI SUBODH RATNAPARKHI, / RE VENUE BY SHRI SOMANATH S UKKALI / DATE OF HEARING : 14 .1.20 16 / DA TE OF PRONOUNCEMENT: 22 . 1.2016 / O R D E R P ER B R BASKARAN,AM: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 29.12.2010 PASSED BY THE LD.CIT(A) - 17 , MUMBAI FOR THE ASSESSMENT YEAR 2004 - 05. 2. THE ASSESSEE IS AGGR IEVED BY THE DECISION OF LD.CIT(A) IN CONFIRMING THE ADDITIONS MADE UNDER SECTIONS 43B AND 68 OF THE ACT. 3. THE APPEAL IS BARRED BY LIMITATION BY 393 DAYS. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE CARRIED ON MANUFACTURIN G COUNTRY LIQUOR BY TAKING EXCISE MANUFACTURING LICENCE ON LEASE FROM A PERSON NAMED AS RATNAPPA KUMBHAR. HOWEVER, AFTER THE DEMISE OF SHRI RATANAPPA KUMBHAR, DISPUTES STARTED IN THE FACTORY AND THE SAME RESULTED IN WITHDRAWAL OF LICENCE AND HENCE PRODUCTI ON WAS S TOPP ED 3916 /M/201 2 2 FROM THE MONTH OF APRIL , 2002 . THE REAFTER THE ASSESSEE ATTEMPTED TO CONTINUE THE BUSINESS BY ENTERING INTO A NEW AGREEMENT WITH ANOTHER COMPANY BUT THE SAME ALSO WENT INTO DISPUTES AND LITIGATION. IN THE MEAN TIME, THE HEALTH OF THE MANAGIN G DIRECTOR OF THE COMPANY AND HIS MOTHER DETERIORATED AND HENCE, THE MANAGING DIRECTOR COULD NOT LOOK AFTER THE AFFAIRS OF THE COMPANY . I N ADDITION TO THE ABOVE , THE R EGULAR CHARTERED ACCOUNTANT OF THE COMPANY MS.VAISHALI KALE LEFT FOR ABROAD FOR FURT HER STUDIES. HENCE, THE ASSESSEE COM PANY COULD NOT GET PROPER GUIDANCE IN THE MATTER RELATING TO THE APPEALS. THE LD. COUNSEL SUBMITTED THAT IN VIEW OF THE PROBLEMS FACED BY THE ASSESSEE, IT DID NOT APPEAR BEFORE THE LD. CIT(A) ALSO. HENCE, THE FIRST APP ELLATE AUTHORITY HAS PASSED AN EX - PARTE ORDER WITHOUT HEARING T HE ASSESSEE. THE LD. AR ACCORDINGLY SUBMI TT ED THA T THE ASSESSEE W AS PREVENTED BY A REASONABLE CAUSE FOR NOT PREFERRING THE APPEAL IN TIME. ACCORDINGLY, HE PRAYED THAT THE DELAY IN FILING HE AP PEAL BE CONDONED AND THE APPEAL BE ADMITTED. 4 . ON THE CONTRARY, THE LD. DR STRONGLY OBJECTED TO THE PLEA PUT FORTH BY THE LD. AR. 5 . WE HEARD THE CONTENTIONS OF THE PARTIES ON THIS PRELIMINARY ISSUE . WE NOTICE THAT THE ASSESSEE WAS INITIALLY MANUFAC TURING COUNTRY LIQUOR BY TAKING MANUFACTURING LICENSE ON LEASE. IT IS FURTHER SUBMITTED THAT THE PRODUCTION WAS STOPPED DUE TO THE DEMISE OF THE LICENSOR. IT IS FURTHER STATED THAT THE AGREEMENT ENTERED INTO WITH ANOTHER COMPANY ALSO WENT INTO DISPUTE AN D LITIGATION . IN SUPPORT OF THIS, THE ASSESSEE HA S FILED THE COPY OF THE CIVIL SUIT FILED BY IT. IT IS ALSO STATED THAT THE HEALTH OF THE MANAGING DIRECTOR OF THE COMPANY ALSO START ED DETERIORATING. HE HAD TO MOVE FREQUENTLY TRAVEL TO VARIOUS PLACE S TO DEAL WITH THE DISPUTES. THE ASSESSEE HAS FILED A PAPER BOOK WHEREIN WE FIND THAT THE ASSESSEE HAS FURNISHED THE COPIES OF CERTAIN ME D ICAL REPORTS AND ALSO THE COPY OF CIVIL 3916 /M/201 2 3 SUIT FILED BY THE ASSESSEE IN ORDER TO SUBSTANTIATE THE SUBMISSIONS MADE IN THE AF FIDAVIT . ALL THESE FACTS SHOW THAT THE MANAGING DIRECTOR OF THE ASSESSEE - COMPANY WAS NOT IN A POSITION TO ATTEND TO THE AFFAIRS OF THE COMPANY AND HENCE WE ARE OF THE VIEW THAT THERE IS A REASONABLE CAUSE FOR NOT FILING THE APPEAL BEFORE THE TRIBUNAL IN TI ME. HOWEVER, WE ARE OF THE VIEW THAT THE PLEA OF THE ASSESSEE SHOULD BE ACCEPTED ON CERTAIN TERMS , SINCE THE ASSESSEE DID NOT APPEAR BEFORE THE LD.CIT(A). ACCORDINGLY, WE IMPOSE A COST OF RS.10,000/ - UPON THE ASSESSEE AND ACCORDINGLY, DIRECT HIM TO PAY T HE SUM OF RS.10,000/ - ON OR BEFORE 15.2 .2016 TO THE ACCOUNT OF THE INCOME TAX DEPARTMENT AS OTHER PAYMENT . SINCE, THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX - PARTE, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE PROVIDED AN OPPORTUNITY TO APPEAR BEFO RE THE LD CIT(A). 6. IN VIEW OF THE ABOVE, WE CONDONE THE DELAY IN FILLING THE APPEAL BEFORE THE TRIBUNAL AND ADMIT THE SAME SUBJECT TO THE PAYMENT OF COST OF RS.10,000/ - BY THE DATE REFERRED ABOVE. SINCE THE ISSUES REQUIRE ADJUDICATION AFTER HEARING TH E ASSESSEE, WE RESTORE THE M TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO EXAMINE THE ISSUE S AFRESH BY AFFORD ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED ALLOWED FOR STATISTICAL PUR POS ES . PRONOUNCED ACCORDINGLY ON 22ND JAN UARY , 2016 . 22 ND JANUARY, 2016 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 22 ND JANUARY, 201 6 . . . ./ SRL , SR. PS 3916 /M/201 2 4 / COPY OF THE ORDER FORWA RDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI