KALSARIA DIAMONDS P.LTD, MUMBAI V. ITO 5(2)(2), MUMBAI

ITA 4060/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2279 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.4060/MUM/2014 ASSESSMENT YEAR: 2009-10 KALSARIA DIAMONDS PVT. LTD. 2008, 20 TH FLOOR, PANCHRATNA, OPERA HOUSE, MAMA PARMANAND ROAD, MUMBAI-400004 / VS. INCOME TAX OFFICER-5(2)-2, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AADCK1265F % $& ' # ( / DATE OF HEARING : 07/12/2015 ' # ( / DATE OF ORDER: 07/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 23/08/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THOUGH THE ASSESSEE HAS RAISED MANY GROUNDS BUT DUR ING HEARING OF THIS APPEAL, THE DIRECTOR OF THE ASSESSE E COMPANY, APPEARED PERSONALLY AND CONTENDED THAT PROPER OPPOR TUNITY OF !' # ! / ASSESSEE BY DIRECTOR OF ASSESSEE/FIRM $ ! / REVENUE BY SHRI B.JAYKUMARAN KALSARIA DIAMONDS PVT. LTD. ITA NO.4060/MUM/2014 2 BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE AND FU RTHER THE EARLIER CHARTERED ACCOUNTANT OF THE ASSESSEE DID NO T APPEAR BEFORE THE ASSESSING OFFICER AS WELL AS THE LD. COM MISSIONER OF INCOME TAX (APPEALS), THEREFORE, THE SUBSTANTIAL CA USE OF JUSTICE HAS BEEN DENIED TO THE ASSESSEE. 2. ON THE OTHER HAND, THE LD. DR, SHRI B. JAYKUMAR AN, CONTENDED THAT IN SPITE OF PROVIDING OPPORTUNITIES ON VARIOUS DATES, THE ASSESSEE DID NOT AVAIL THE SAME ULTIMATE LY EX-PARE ORDER WAS FRAMED BY THE ASSESSING OFFICER AS WELL A S BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WITHOUT G OING INTO MUCH DELIBERATION/MERITS OF THE CASE, WE FIND THAT ASSESSMENT ORDER WAS PASSED U/S 144 OF THE INCOME TAX ACT, 196 1 (HEREINAFTER THE ACT) BY THE LD. ASSESSING OFFICER AS THE ASSESSEE DID NOT APPEAR BEFORE HIM. LIKEWISE, NOBODY APPEARE D BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CONSE QUENTLY, EX-PARTE ORDER, QUA THE ASSESSEE, WAS PASSED. IN VI EW OF THESE FACTS, ONE CLEAR FACT IS OOZING THAT THE ASSESSEE N EITHER APPEARED BEFORE THE ASSESSING OFFICER NOR BEFORE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS). BEFORE US, ON QUESTIONING BY THE BENCH WITH RESPECT TO NON-APPEAR ANCE BEFORE THE AUTHORITIES THE DIRECTOR OF THE ASSESSEE COMPANY, WHO APPEARED PERSONALLY, EXPLAINED THAT THE EARLIER CHARTERED ACCOUNTANT DID NOT APPEAR BEFORE THEM, IT WAS BEYON D THEIR CONTROL. HOWEVER, WE ARE OF THE VIEW THAT NO PERSON SHOULD BE KALSARIA DIAMONDS PVT. LTD. ITA NO.4060/MUM/2014 3 CONDEMNED UNHEARD. AT THE SAME TIME, SINCE THE ASSE SSEE DID NOT APPEAR NOR EXPLAINED HIS POSITION BEFORE THE AU THORITIES, WE IMPOSED RS.25,000/- WHICH IS TO BE DEPOSITED BY THE ASSESSEE IN PRIME MINISTER RELIEF FUND WITHIN TWENTY DAYS FR OM THE RECEIPT OF THIS ORDER BY THE ASSESSEE. IF THE ASSE SSEE DEPOSITS THE MONEY, AS STATED HEREINABOVE, THE ASSESSEE IS D IRECTED TO APPEAR BEFORE THE LD. ASSESSING OFFICER WITHIN ONE MONTH FROM THE RECEIPTS OF THE ORDER AND WILL SHOW THE RECEIPT S OF THE DEPOSIT OF THE AFORESAID AMOUNT, THEREAFTER, THE LD . ASSESSING OFFICER SHALL HEAR THE CASE OF THE ASSESSEE ON MERI T AFRESH FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. IF THE ASSESSEE FAILS TO DEPOSIT THE AFOR EMENTIONED AMOUNT OF RS.25,000/- WITHIN THE STIPULATED PERIOD AND FURTHER IF THE ASSESSEE DOES NOT APPEAR BEFORE THE ASSESSIN G OFFICER WITHIN ONE MONTH, THE LD. ASSESSING OFFICER IS FREE TO DECIDE THE APPEAL OF THE ASSESSEE ON THE BASIS OF MATERIAL AVA ILABLE WITH HIM. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 07/12/2015 SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER KALSARIA DIAMONDS PVT. LTD. ITA NO.4060/MUM/2014 4 % & MUMBAI; * DATED : 07/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 % 2# ( , ) / THE CIT, MUMBAI. 4. 1 1 % 2# / CIT(A)- , MUMBAI 5. 4$5 /# , 1 ,( 6 , % & / DR, ITAT, MUMBAI 6. ! 8& / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI