HETU INVESTMENT AND TRADING LIMITED, MUMBAI V. INCOME TAX OFFICER, WARD 5(1)(4), MUMBAI

ITA 4306/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5166 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 12-06-2017
• Court: TRIBUNAL

Judgement Text

P A G E | 1 ITA NO. 4306/MUM/2017 AY. 2012 - 13 HETU INVESTMENT & TRADING LTD. VS. INCOME TAX OFFICER, WARD - 5(1)(4) IN THE INCOME TAX APPELLATE TRIBUNAL H, BENCH MUMBAI BEFORE SHRI SANDEEP GOSAIN, JM & SHRI N.K.PRADHAN, AM ITA NO.4306/MUM/2017 (ASSESSMENT YEAR:2012 - 13) HETU INVESTMENT & TRADING LTD. 71, PUSHPAK APARTMENTS, 31, ALTAMOUNT ROAD, MUMBAI - 400 026 VS. INCOME TAX OFFICER, WARD - 5(1)(4) AAYAKAR BHAVAN, 5 TH FLOOR, ROOM NO. 569, M.K. ROAD, MUMBAI - 400 020 PAN/GIR NO. AAACH1212Q (ASSESSEE ) .. (REVENUE) ASSESSEE BY SHRI M.K. PATEL & SHRI K.S. CHOKSHI, A.RS REVENUE BY SHRI SACHCHIDANAND DUBE, D.R DATE OF HEARING 05/09/2018 DATE OF PRONOUNCEMENT 0 3 / 1 0 /2018 / O R D E R PER SANDEEP GOSAIN (J.M): THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 10, MUMBAI DATED 15.03.2017 FOR A.Y.2012 - 13 WHICH IN ITSELF ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 144 OF THE INCOME TAX ACT, 19 61 (FOR SHORT ACT) DATED 25.03 .2015. 2. GROUNDS OF APPEAL: 1. (A) THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPEAL AS NOT MAINTAINABLE WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THUS MAKING THE ORDER BAD IN LAW. (B) THE LD. CIT (A) HAS ERRED IN PASSING AN EX - PARTE ORDER STATING THAT THERE WAS NO COMPLIANCE/ RESPONSE FROM THE ASSESSEE WITHOUT CONSIDERING THE LETTERS FILED BEFORE HIM AND THE PERSONAL ATTENDANCE MADE BY THE AR. THEREFORE, ORDER PASSED IS BAD IN LAW AND NEEDS TO BE QUASHED. (C) THE LD. CIT (A) ERRED IN PASSING AN EX - PARTE ORDER WITHOU T CONSIDERING THE FOLLOWING COMMUNICATIONS MADE BY THE AUTHORISED REPRESENTATIVE AND THE ASSESSEE: P A G E | 2 ITA NO. 4306/MUM/2017 AY. 2012 - 13 HETU INVESTMENT & TRADING LTD. VS. INCOME TAX OFFICER, WARD - 5(1)(4) SR. NO. LETTER DATED LETTER FILED ON REMARKS 1. 10.03.2017 10.03.2017 SEEKING AN ADJOURNMENT FOR HEARING FIXED ON 14.03.2017 2. 21.03.2017 23.03.2017 SUO - MOTO SEEKING AN ADJOURNMENT. 3. 30.03.2017 30.03.2017 SUO - MOTO MEETING THE HON. CIT(A) PERSONALLY INFORMING HON. CIT(A) THAT THE DETAILS HAVE BEEN RECEIVED AND SEEKING A SHORT ADJOURNMENT. 4. 31.03.2017 31.03.2017 SUO - MOTO FILED A DETAILED WRITTEN SUBMISSION (D) THE LD. CIT (A) ERRED IN PASSING AN EX PARTE ORDER WITHOUT CONSIDERING THE DETAILED SUBMISSION FILED ON 31/03/2017. THEREFORE, ORDER PASSED IS BAD IN LAW AND NEEDS TO BE QUASHED. E) THE LD. CIT (A) HAS ERRED IN PASSING AN EX PARTE ORDER WITHOUT ISSUING ANY SHOW CAUSE NOTICE GIVING AN OPPORTUNITY OF BEING HEARD AND ASKING TO CAUSE WHY THE APPEAL SHOULD NOT BE DISMISSED. THEREFORE, ORDER PASSED IS BAD IN LAW AND NEEDS TO B E QUASHED. (F ) THE LD. CIT (A) HAS ERRED IN STATING THE DATE OF ORDER AS 15/03/2017 WHEREAS THE ORDER WAS DISPATCHED BY THE LD. CIT (A) ON 02/05/2017 AND RECEIVED BY THE ASSESSEE ON 04/05/2017. THEREFORE, MAKING ORDER BACKDATED IS HAD IN LAW. 2. WITHOUT PREJUDICE TO THE GROUND NO. 1, THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 20,00,000/ - AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE SAME BE ALLOWED. 3. WITHOUT PREJUDICE TO THE GROUND NO. 1, THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 1,15,67,797/ - AS UNDISCLOSED GROSS PROFIT WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE SAME BE ALLOWED. 4. WITHOUT PREJUDICE TO THE GROUND NO. 1, THE LD. CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 7,53,150/ - U/S. 14A OF THE ACT R.W. RULE 8D WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE SAME BE ALLOWED. 5. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE THE GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING. 3. BRIEF FACTS OF THE CASE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEALING TEXTILES AND GENERAL TRADING. IT FURNISHED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29.09.2012 DECLARING TOTAL INCOME OF RS. 34,64, 50/ - NOTICE UNDER SEC. 143(2) OF THE INCOME TAX ACT WERE SERVED UPON THE ASSESSEE. THE AO COMPLETING ASSESSMENT UNDER SEC. 144 OF THE INCOME TAX ACT DETERMINING TOTAL INCOME OF RS.1,77,85,44 7/ - ON 21.03.2015 BY MAKING SEVERAL DISALLOWANCE. P A G E | 3 ITA NO. 4306/MUM/2017 AY. 2012 - 13 HETU INVESTMENT & TRADING LTD. VS. INCOME TAX OFFICER, WARD - 5(1)(4) 4. AGGRIEVED BY THE ORDER OF THE A.O ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES, DECIDED THE APPEAL EX - PARTE ON 15.03.2017. AGAINST THIS O RDER THE ASSESSEE PREFERRED PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREINABOVE. GROUND 1 (A TO F) 5. ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTERRELATED AND INTERCO NNECTED AND RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN PASSING EX - PARTE ORDER DATED 15.03.2017 THEREFORE WE TH OUGHT IT FIT TO DISPOSE OFF THESE GROUND S BY THE PRESENT CONSOLIDATE ORDER. 6. THE LD. A.R SUBMITTED BEFORE US THAT IN THE ORDER PASSED BY LD. CIT(A) IS BAD IN LAW AS THE LD. CIT(A) HAS NOT PROVIDED DUE OPPO RTUNITY OF HEARING TO THE ASSESSEE. IT WAS ALSO SUBMITTED THAT AN APPLIC ATION FOR SEEKING ADJOURNMENT WAS FILED BY THE ASSESSEE ON 10 TH MARCH, 2017 THEREBY SEEKING 20 - 25 DAYS TIME FOR CON TESTING THE CASE BEFORE THE LD. CIT(A) . HOWEVER, THE LD. CIT(A) PROC EEDED THE ASSESSEE EX - PARTE ON 14.03.2016 AND PASSED THE IMPUGNED ORDER ON 15.03.2017. IT WAS ALSO SUBMITTED THAT THE PASSING OF ORDER ON 15.03.2017 WAS NOT INTIMATED TO THE ASSESSEE THEREFORE ON 21 ST MARCH, 2017 AGAINN THE ASSESSEE MOVED AN APPLICATION BEFORE THE LD. CIT(A) FOR SEEKING ADJOURNMENT ON 30.03.2017 THE ASSESSEE HAD SUBMITTED WRITTEN SUBMISSIONS TO THE LD. CIT(A) FOR CONSIDERATION. 7 . THE LD. A.R DRAWN OUR ATTENTION TO PAGE NO. 32 OF THE PAPER BOOK WHICH C ONTAINED THE COVERING LETTER FROM THE OFFICE OF COMMISSIONER OF INCOME TAX(A) TO THE ASSESSEE AND POINTED OUT THAT THE IMPUGNED ORDER DATED 15.03.2017 WAS DISPATCHED TO THE ASSESSEE ON 21.05.2017 . IN THIS WAY IT WAS SUBMITTED THAT DUE OPPORTUNITY OF HEARIN G WAS NOT GRANTED TO THE ASSESSEE. ON THE OTHER HAND LD. DR RELI ED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 8 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECO RD AS WELL AS THE ORDERS PASSED BY THE P A G E | 4 ITA NO. 4306/MUM/2017 AY. 2012 - 13 HETU INVESTMENT & TRADING LTD. VS. INCOME TAX OFFICER, WARD - 5(1)(4) REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICE THAT THE ASSESSEE HAD FILED AN APPLICATION ON 10.03.2017 FOR SEEKING ADJOURNMENT BUT THE LD. CIT(A) PROCEEDED TO DECIDED THE CASE EX - PARTE AND PASSED ORDER ON 15.03.2017. WE ALSO NOTICED THAT THE IMPUGNE D ORDER WAS DISPATCHED ONLY ON 2 1 .05.2017 FOR WHICH NO JUSTIFICATION HAS BEEN PUTFORTH BEFORE US BY THE REVENUE. WE ALSO NOTICED THAT ALTHOU GH THE ASSESSEE HAD BEEN MOVING APPLICATIONS ONE AFTER ANOTHER BUT NO REPLY WAS EVER GIVEN BY LD. CIT(A) REGARDING P ASSING OR PRONOUNCEMENT OF ORDERS ON 15.03.2017. ON THE OTHER HAND WE HAVE ALSO NOTICED THAT ASSESSEE HAS ALSO NOT COOPERATE D WITH THE LD. CIT(A) AND HAD NOT COMPL IED WITH THE DIRECTIONS SO GIVEN BY THE LD. CIT(A) AND EVEN THE ORDER PASSED UNDER SEC. 144 O F THE INCOME TAX ACT BY THE AO ALSO REFLECT S THE CONDUCT OF THE ASSESSEE. 9 . AFTER HEARING THE PARTIES AT LENGTH, ALTHOUGH WE ARE NOT CONVINCED WITH THE REASONING PUT FORTH BY THE ASSESSEE FOR NON APPEARANCE BEFORE LD. CIT(A) . W E ARE OF THE VIEW THAT IT I S THE BOUNDED DUTY OF THE ASSESSEE OR HIS REPRESENTATIVE TO APPEAR BEFORE THE AUTHORITIES ON EACH AND EVERY DATE OF HEARING AND TO ASSIST AND COOPERATE THE AUTHORITIES FOR THE EARLY DISPOSAL OF THE APPEAL, BUT IN THIS CASE, ASSESSEE HAD NOT COOPERATED WITH THE REVENUE AUTHORITIES. BE THAT AS IT MA Y, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND KEEPING IN VIEW THE SUBSTANTIAL CAUSE OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY, WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONT ESTING THE APPEAL ON MERITS. IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT(A) THEN IN THAT EVENTUALIT Y , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LE G ITIMATE TAXES DUE ON THE ASSESSEE'S CORRECT INCOME WILL BE ADJUDICATED. WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. THEREFORE, KEEPING IN VIEW THE A BOVE DISCUSSION, WE SET ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND REMIT THE MATTER BACK TO THE P A G E | 5 ITA NO. 4306/MUM/2017 AY. 2012 - 13 HETU INVESTMENT & TRADING LTD. VS. INCOME TAX OFFICER, WARD - 5(1)(4) FILE OF LD. CIT(A) WITH A DIRECTION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND THEREAFTER PASS AFRESH ORDER ON ALL THE GROUNDS RAISED BY THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE LD. CIT(A) WITHIN 60 DAYS FROM TODAY AND COOPERATE IN EARLY DISPOSAL OF THE APPEAL . BEFORE PARTING, WE MA Y MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVI NG ANY REFL ECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. RESULTANTLY THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 10 . IN THE NET RESUL T, THE APPE AL FILED BY THE ASSESSEE IS PARTLY ORDER PRONOUNCED IN THE OPEN COURT ON 0 3 . 1 0 .2018 S D / - S D / - (N.K. PRADHAN) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 0 3 . 1 0 .2018 PS. ROHIT / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI