SHRIPAL BUILDERS, MUMBAI V. CIT 12, MUMBAI

ITA 4067/MUM/2013

• Counselvise Citation: 406719914 RSA 2013
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Principle of natural justice
• Section: 263; 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI A.D.JAIN (JM) AND RAJENDRA (AM) . . , , ./ I.T.A. NO. 4067 / MUM/20 1 3 ( / ASSESSMENT YEAR : 20 0 7 - 08 ) SHRIPAL BUILDERS, 18, SAHEB BUILDING, 195, D N ROAD, FORT, MUMBAI - 400001 / VS. COMMISSIONER OF INCOME TAX - 12, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AATFS9508E / APPELLANT BY SHRI SUBODH RATNAPARKHI / RSPONDENT BY SHRI S S RANA / DATE OF HEARING : 2 9 . 7 . 201 5 / DATE OF PRONOUNCEMENT : 29.7 . 201 5 / O R D E R PER A D JAIN ( J M) TH IS IS ASSESSEE S APPEAL FOR ASSESSMENT YEAR 200 7 - 08 AGAINST THE ORDER DATED 1.3.2012 , PASSED U/S 263 OF THE INCOME TAX ACT, 1961 , BY THE LD . C OMMISSIONER OF INCOME TAX . 2. THE B RIEF FACTS OF THE CASE . T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF BUILDING AND CONSTRUCTION. IT FILED RETURN , CLAIMING BENEFIT OF SECTION 80IB(10) OF THE ACT, DECLARING TOTAL INCOME AT NIL . THE CASE WAS SELECTED FOR SCRUTINY. IN THE SCRUTINY PROCEEDINGS, THE AO , AFTER FOLLOWING DUE PROCESS OF LAW AND CALLING EXPLANATION S AND MATERIAL RELEVANT THERETO AND AFTER CONSIDERING ALL FACTS , VIDE ASSESSMENT ORDER DATED 17.11.2009 , PASSED U/S 143(3) , MADE THE ASSESSMENT AT NIL INCOME . ITA NO. 4067/ MUM/20 1 3 2 3 . THE COMMISSIONER OF THE INCOME TAX CALLED FOR THE RECORD AND AFTER EXAMINATION OF THE SAME , WAS OF THE OPINION THAT THE ASSESSMENT MADE BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST S OF THE REVENUE. THEREFORE, THE LD . COMMISSIONER ISSUED NOTICES TO THE ASSESSEE , AS MENTIONED IN THE ORDER PASSED UNDER SECTION 263 OF THE ACT. THE ORDER - SHEET ENTRIES AND RECORD SHOWS THAT THE NOTICES ISSUED BY THE COMMISSIONER WERE DULY SERVED ON ASSESSEE. DESPITE HAVING ISSUED VARIOUS NOTICES AND ON SERVICE THEREO F , THE ASSESSEE DID NOT APPEAR BEFORE THE COMMISSIONER TO CONTEST THE MATTER. THE LD. COMMISSIONER , AFTER CONSIDERING THE FACTS ON RECORD AND RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S CALCUTTA AGENCY 19 ITR 191 (SC), THE DECISION OF THE HONBLE ANDRA PRADESH HIGH COURT IN THE CASE OF CIT V/S TRANSPORT CORPORATION OF INDIA LTD 256 ITR 701 (AP) AND THE DECISION IN THE CASE OF CIT V/S IMPERIAL CHEMICAL INDUSTRIES (I) P LTD 74 ITR 17, HELD THAT THE ASSESSMENT ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST S OF THE REVENUE. THEREFORE, HE SET ASIDE THE ORDER OF THE AO WITH A DIRECTION TO EXAMINE THE CLAIM OF THE DEDUCTION U/S 80IB(10) BY TAKING INTO CONSIDERING THE ABOVE FACTS AND AFTER PROVIDING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL . 4. THE MAIN GRIEVANCE OF THE ASSESSEE , RAISED BEFORE US , IS THAT THE LD. COMMISSIONER HAS NOT GIVEN ANY OPPORTUNITY T O EXPLAIN THE CASE AND TO PRODUCE THE RELEVANT DOCUMENT S BEFORE ARRIVING AT CONCLUSION THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE NEVER RECEIVED NOTICE ISSUED BY COMMISSIONER U/S 263 OF THE ACT . THE LD.DR, ON THE OTHER HAND, HAS STRONGLY RELIED ON THE IMPUGNED ORDER. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTIES AND HAVE PERUSED THE RECORD. WE FIND THAT THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT BY ALLOWING DEDUCTION U/S 80IB(10) AND DETERMIN ING THE TOTAL INCOME OF THE ASSESSEE AT NIL. THE COMMISSIONER HA D CALLED FOR THE RECORD AND AFTER ITA NO. 4067/ MUM/20 1 3 3 CONSIDERING THE FACTUAL ASPECTS OF THE MATTER . H E WAS OF THE VIEW THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST S OF THE REVENUE. ACCORDINGLY, THE COMMISSIONER SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND DIRECTED HIM TO RECONSIDER THE MATTER AND DETERMINE THE INCOME IN ACCORD ANCE WITH LAW. WE FIND THAT IN THE ORDER PASSED U/S 263 , THE COMMISSIONER HAS GIVEN VARIOUS OPPORTUNITIES TO THE ASSESSEE. BUT THE ASSESSEE DID NOT AVAIL OF THEM. AT THE TIME OF HEARING BEFORE US , THE LD. AR SUBMITTED THAT NO NOTICE OF THE REVISIONS PROCEEDINGS WAS RECEIVED BY THE ASSESSEE, DUE T O WHICH THE ASSESSEE WAS UNABLE TO FILE THE NECESSARY DOCUMENTARY EVIDENCE BEFORE THE COMMISSIONER TO PROVE H IS CASE AND HENCE ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE. THE LD. DR STRONGLY OBJECTED TO THE CONTENTIONS OF THE LD. AR AND SUBMITTED THAT T HE COMMISSIONERS ORDER SHOWS THAT THE COMMISSIONER HAS GIVEN SUFFICIENT AND REASONABLE OPPORTUNITIES , BUT THE ASSESS EE DID NOT RESPOND AND COMPELLED THE COMMISSIONER TO PASS AN EX - PARTE ORDER. 6 . BE THAT AS IT MAY, THE PRINCIP LES OF NATURAL JUSTICE DEMA ND THAT T HE CASE OF THE ASSESSEE SHOULD NOT BE DECIDED UNHEARD AND IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY BEFORE THE CIT , NO PREJUDICE WOULD BE CAUSED TO THE REVENUE. ACCORDINGLY , WE SET ASIDE THE ORDER OF THE COMMISSIONER AND RESTORE THE SAME TO H IS FILE FO R FRESH CONSIDERATION OF THE MATTER. WE ALSO DIRECT THE ASSESSEE TO CO - OPERATE WITH THE COMMISSIONER FOR A SPEEDY DISPOSAL OF THE APPEAL. THE COMMISSIONER IS ALSO DIRECTED TO PROVIDE NECESSARY AND REASONABLE OPPORTUNITY OF BEING HEA R D TO THE ASS ESSEE. IF THE ASSESSEE FAILS TO AVAIL THIS SECOND INNING , THE COMMISSIONER IS AT LIBERTY TO DECIDE THE CASE IN ACCORDANCE WITH LAW. 7. IN THE RESULT, HE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . PRONOUNCED ACCORDINGLY ON 29 TH JULY , 2015. 29 TH JULY, 2015 SD SD ( / RAJENDRA) ( . . / A.D. JAIN ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 29 TH JULY, 2015 . ITA NO. 4067/ MUM/20 1 3 4 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED 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