C.R.RETAIL MALL (INDIA) LTD, MUMBAI V. ITO 6(2)(1), MUMBAI

ITA 4034/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1419 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 14-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTHIKIYEN
• Assessee Lawyers: SHREY KHANNA
• Keywords: Set aside
• Section: 201

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN, JM & HONBLE SHRI N. K. PRADHAN , AM ./ I.T.A. NO . 4034/MUM/2016 , ( / ASSESSMENT YEAR: 2010 - 11 ) C. R. RETAIL MALLS (INDIA) LTD. 7 TH FLOOR, CNERGY, APPA SAHEB MARATHE MARG, PRABHADEVI, MUMBAI - 400 025 / VS. ITO 6 (2 ) (1) , AAYAKAR BHAVAN , M. K. MARG, BANDRA (E), MUMBAI - 400 012 ./ ./ PAN/GIR NO. A A BCC9162F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SH SHREY KHANNA , AR / RESPONDENTBY : SH. ABI RAMA KARTHIKIYEN , DR / DATE OF HEARING : 21/02 /201 9 / DATE OF PRONOUNCEMENT : 03.05.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL FILED BY THE ASSESSEE IS CHALLENGING AGAINST THE ORDER OF THE CIT(A) - 12, MUMBAI DATED 10.03.16 FOR AY 201 0 - 11 . 2 I.T.A. NO. 4034 /MUM/201 6 C. R. RETAIL MALLS (INDIA) LTD. 2. AT THE VERY OUTSET, WE NOTICED THAT ASSESSEE HAD NOT APPEARED BEFORE LD. CIT(A), THEREFORE LD. CIT(A) HAD PASSED EX - PARTE ORDER BY DISMISSING THE APPEAL OF THE ASSESSEE AND NOW, ASSESSEE HAD CHALLENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE ORDER OF AO. 3. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. F ROM THE RECORDS , WE NOTICED THAT LD. CIT(A) HAD PASSED AN EX - PARTE ORDER AS NOBODY APPEARED ON BEHALF OF THE ASSESSEE BEFORE LD. CIT(A). ON PERUSAL OF THE ORDER, WE ALSO NOTICE D THAT INIT IALLY THE APPEAL WAS FIXED ON 06.05.15 , BUT ON THAT DAY, NOBODY APPEARED NOR ANY ADJOURNMENT PETITION WAS FILED BY THE ASSESSEE, AGAIN THE MATTER FIXED ON 18.01.16, STILL NOBODY APPEARED, THUS THE MATTER WAS AGAIN ADJOU RNED TO 24.02.16, BUT ON THAT DAY TOO , ADJOURNMENT PETITION WAS FILED BY ASSESSEE REQUESTING FOR ADJOURNMENT UPTO MARCH 2016 AND THE CASE WAS ADJOURNED TO 10.03.16 FOR THE LAST TIME, BUT ON THAT ALSO , NOBODY APP EARED ON BEHALF OF THE ASSESSEE. IN OUR VIE W, I T WAS THE BOUNDED DUTY OF THE PARTIES I.E ASSESSEE AS 3 I.T.A. NO. 4034 /MUM/201 6 C. R. RETAIL MALLS (INDIA) LTD. WELL AS THE DEPARTMENT TO APPEAR BEFORE T HE LD. CIT(A). SINCE, THIS WAS THE ASSESSEES APPEAL, THEREFORE IT WAS ALL THE MORE IMPORTANT FOR THE ASSESSEE TO APPEAR BEFORE LD. CIT(A). HOWEVER, THE ASSE SSEE HAD NOT ACTED WITH DUE DILIGENCE. NEVERTHELESS, THE PRINCIPLES OF NA TURAL JUSTICE DEMANDS THAT THE LI S BETWEEN THE PARTIES SHOULD BE DECIDED ON MERIT S AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 4. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIR CUMSTANCES OF THE PRESENT CASE AND WHILE CONSIDERING THE REQUEST OF THE ASSESSEE THAT HE COULD NOT APPEAR BEFORE LD. CIT(A) BECAUSE OF UNAVOIDABLE CIRCUMSTANCES, THEREFORE WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE SET ASIDE THE EX - PARTE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE BACK THE MATTER TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE APPEAL ON MERITS AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE SUBJECT TO COST OF RS. 5,000/ - TO BE PAID BY THE ASSESSEE IN THE ACCOUNT OF PRIME MINISTERS RELIEF FUND WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. WE FURTHER DIRECT THAT ASS ESSEE WOULD APPEAR BEFORE LD. CIT(A) WITHIN 30 DAYS FROM 4 I.T.A. NO. 4034 /MUM/201 6 C. R. RETAIL MALLS (INDIA) LTD. THE DATE OF RECEIPT OF THIS ORDER AND WOULD COOPER ATE IN THE EARLY DISPOSAL OF THE APPEAL. 5 . BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHIC H SHALL BE ADJUDICATED BY LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, THE GROUND S OF APPEAL RAISED BY THE ASSESSEE ARE PARTLY A LLOWED FOR STATISTICAL PURPOSES. 6 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY A LLOWED FOR STATISTICAL PURPOSES IN TERMS INDICATED ABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MAY, 2019. SD/ - SD/ - (N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 03 . 05 .201 9 SR.PS . DHANANJAY 5 I.T.A. NO. 4034 /MUM/201 6 C. R. RETAIL MALLS (INDIA) LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI