HYVA INDIA PVT. LTD., NAVI MUMBAI V. ACIT-10(3) NOW ACIT 15(2)(1), MUMBAI

ITA 4119/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4989 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) & AMARJIT SINGH (J M) I.T.A. NO. 4119/MUM/2017 (ASSESSMENT YEAR 2005-06) HYVA INDIA PVT. LIMITED EL-215, TTC INDUSTRIAL AREA, PAWANE MAHAPE NAVI MUMBAI-400 705. PA N : AAACH2006C VS. ACIT-10(3) NOW ACIT 15(2)(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI RUTURAJ H. GURJAR DEPARTMENT BY SHRI MANOJ KUMAR SINGH DATE OF HEARING 2 4 .10 . 201 8 DATE OF PRONOUNCEMENT 24.10.2018 O R D E R PER B.R. BASKARAN (AM) :- THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING TH E ORDER DATED 15.3.2017 PASSED BY THE LEARNED CIT(A)-24, MUMBAI AND IT RELA TES TO A.Y. 2005-06. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNE D CIT(A) IN DISMISSING THE APPEAL FILED BY THE ASSESSEE BY PASSING AN EX-PARTE ORDER, WITHOUT HEARING THE ASSESSEE. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT U/S. 147 OF THE ACT AND HE WAS CONSTRAINED TO PASS THE ORDER TO THE BEST OF HIS JU DGEMENT U/S. 144 READ WITH SECTION 147 OF THE ACT. 3. BEFORE THE LEARNED CIT(A) ALSO, THE ASSESSEE DID NOT APPEAR AND WAS SEEKING ADJOURNMENTS BY FILING ADJOURNMENT LETTERS. WE NOTICED THAT THE LEARNED CIT(A) HAS GIVEN NINE OPPORTUNITIES TO THE ASSESSEE AND FINALLY HE HAS PASSED THE ORDER EX-PARTE, WITHOUT HEARING THE ASSE SSEE. HYVA INDIA PVT. LIMITED 2 4. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS B EEN COOPERATING WITH THE ASSESSING OFFICER IN COMPLETION OF ASSESSMENT O F OTHER YEARS. BEFORE THE LEARNED CIT(A) ALSO, THE ASSESSEE WAITED FOR THE RE MAND REPORT, THAT WAS CALLED FOR BY THE LEARNED CIT(A) FROM THE ASSESSING OFFICE R AND HENCE THE ASSESSEE WAS CONSTRAINED TO FILE LETTERS SEEKING ADJOURNMENT OF THE MATTER. ACCORDINGLY, LEARNED AR SUBMITTED THAT THERE IS NO WILLFUL NON-C OMPLIANCE ON THE PART OF THE ASSESSEE AND ACCORDINGLY PLEADED THAT THE ASSESSEE MAY BE PROVIDED WITH ONE MORE OPPORTUNITY TO PRESENT ITS CASE ON MERITS BEFO RE THE LEARNED CIT(A). 5. THE LEARNED DR STRONGLY OBJECTED TO THE PLEA PUT FORTH BY LEARNED AR. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS NOT APPEARED BEFORE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) AND HENCE ITS PLEA SHOULD NOT BE ADMITTED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICED THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSES SING OFFICER AS WELL AS THE LEARNED CIT(A), HENCE BOTH THE PARTIES HAVE PASSED THE ORDER EX-PARTE, WITHOUT HEARING THE ASSESSEE. THE LEARNED AR HAS SUBMITTED THAT THE ASSESSEE HAS FILED EXPLANATIONS BEFORE THE LEARNED CIT(A) AND HE NCE THE FIRST APPELLATE AUTHORITY HAS CALLED FOR A REMAND REPORT FROM THE A SSESSING OFFICER. SINCE THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE LEARNED CIT(A) WOULD NOT FINALISE THE APPEAL UNLESS REMAND REPORT RECEIVES FROM THE A SSESSING OFFICER AND SINCE THE REMAND REPORT WAS NOT SENT BY THE ASSESSING OFF ICER, THE ASSESSEE WAS CONSTRAINED TO SEEK ADJOURNMENT TIME AND AGAIN. EV EN THOUGH THERE IS SOME MERIT IN THE SAID SUBMISSION OF THE ASSESSEE, YET W E ARE OF THE VIEW THAT THE ASSESSEE SHOULD HAVE APPEARED BEFORE THE LEARNED CI T(A) WITHOUT SEEKING ADJOURNMENTS AND SHOULD HAVE LEFT THE MATTER TO THE DISCRETION OF THE LEARNED CIT(A). THUS, IN OUR VIEW, THERE WAS SOME AMOUNT O F LETHARGY ON THE PART OF THE ASSESSEE. HOWEVER, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE MAY BE PROVIDED WITH AN OPPORTUNI TY TO PRESENT ITS CASE BEFORE THE LEARNED CIT(A). HOWEVER, SAME SHOULD BE ON CERTAIN TERM, I.E., ON PAYMENT OF COST OF ` 10,000/- (RUPEES TEN THOUSAND) TO THE CREDIT OF IN COME HYVA INDIA PVT. LIMITED 3 TAX DEPARTMENT. ACCORDINGLY WE IMPOSE A COST OF RS .10,000/- UPON THE ASSESSEE, WHICH SHALL BE PAID ON OR BEFORE 31.10.20 18 TO THE CREDIT OF THE INCOME TAX DEPARTMENT UNDER THE HEAD OTHER FEES. SUBJECT TO THE PAYMENT OF COST MENTIONED ABOVE, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE ALL THE ISSUES TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . WE ALSO DIRECT THE ASSESSEE TO COOPERATE WITH THE LEARNED CIT(A) FOR E XPEDITIOUS DISPOSAL OF THE APPEAL. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER HAS BEEN PRONOUNCED IN THE COURT ON 24.1 0.2018. SD/- SD/- (AMARJIT SINGH) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 24/10/2018 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// ( SENIOR PRIVATE SECRETARY) PS ITAT, MUMBAI