NBS NTERNATIONAL LTD, MUMBAI V. ACIT RG 5(2), MUMBAI

ITA 4444/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1647 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 24-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA; HARIGOVIND SINGH
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B : MUMBAI BEFORE SHRI D.MANMOHAN, HONBLE VICE PRESIDENT AND SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA. NO. 4444/MUM/2009 ASSESSMENT YEAR 2005-2006 NBS INTERNATIONAL LTD. MUMBAI 400 007. PAN AAACN-3646-E VS. ACIT, RANGE 5 (2) MUMBAI - 020 (APPELLANT) (RESPONDENT) FOR APPELLANT : -NONE- ADJOURNMENT LETTER DT.12 -5-2010 FOR RESPONDENT : S/SHRI HARI GOVIND SINGH & SS.RA NA (DR) ORDER PER D.MANMOHAN, V.P. 1. THIS APPEAL WAS FILED AT THE INSTANCE OF THE AS SESSEE- COMPANY AND IT PERTAINS TO ASSESSMENT YEAR 2005-200 6. THOUGH CASE WAS LISTED FOR HEARING ON 14-5-2010 NONE APPEARED O N BEHALF OF THE ASSESSEE. WE THEREFORE PROCEED TO DISPOSE OF THE AP PEAL EX-PARTE, QUA THE ASSESSEE. 2. WE HAVE HEARD THE LEARNED DR AND CAREFULLY PERU SED THE RECORD. 3. ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF SALE OF VEHICLES AND ITS ACCESSORIES. IN RESPECT OF PREVIOU S YEAR RELEVANT TO THE ASSESSMENT YEAR 2005-2006 IT DECLARED TOTAL INCOME OF RS.39,26,990/- WHEREAS ASSESSMENT WAS COMPLETED BY DETERMINING INC OME AT RS.42,15,880/- BY MAKING THE FOLLOWING DISALLOWANCE . (I) UNDECLARED COMMISSION AS PER AIR INFORMATION RS. 1,88,893 (II) OUT OF SALES INCENTIVE & PROMOTIONAL EXPENSE 50,000 (III) OUT OF POSTAGE & TELEPHONE EXPENSES 25,00 0 (IV) OUT OF MISCELLANEOUS EXPENSES 25, 000 ---------------- RS.2,88,893 ----------------- 2 4. AGGRIEVED, ASSESSEE CONTENDED BEFORE THE CIT(A) THAT DISALLOWANCES MADE BY THE ASSESSING OFFICER HAVE NO BASIS. LEARNED CIT(A) POSTED THE CASE FOR HEARING ON 12-3-2009 ON WHICH DATE NONE APPEARED FOR THE ASSESSEE AND HENCE, APPEAL WAS DIS POSED OF ON MERITS WHEREIN HE CHOSE TO DISMISS THE APPEAL ON TH E GROUND THAT THE DISALLOWANCES MADE BY THE ASSESSING OFFICER WERE NO T SHOWN TO BE WRONG. 5. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. MAIN GROUND OF THE ASSESSEE IS THAT THE LEARNED CIT(A) D ISPOSED OF THE APPEAL WITHOUT GIVING A REASONABLE OPPORTUNITY OF B EING HEARD. LEARNED DR WAS UNABLE TO POINT OUT AS TO WHEN THE N OTICE WAS SERVED BY THE LEARNED CIT(A) TO THE ASSESSEE. ADMITTEDLY, APPEAL SOUGHT TO BE DISPOSED OF ON THE DATE OF FIRST POSTING. UNDER THE SE CIRCUMSTANCES, IN THE INTEREST OF SUBSTANTIAL JUSTICE WE DEEM IT FAIR AND REASONABLE TO SET ASIDE THE MATTER TO THE FILE OF THE CIT(A) WHO IS D IRECTED TO GIVE THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AN D DISPOSE OF THE APPEAL IN ACCORDANCE WITH LAW. SINCE THE ORDER OF T HE LEARNED CIT(A) IS SET ASIDE IT IS NOT NECESSARY FOR US TO GO INTO THE OTHER ISSUES URGED BEFORE US. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE-COM PANY IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS THE 31 ST DAY OF MAY, 2010 SD/- SD/- (J.SUDHAKAR REDDY) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 31 ST MAY, 2010. VBP/- 3 COPY TO 1. NBS INTERNATIONAL LTD. 10, STONE BUILDING, CHOWP ATTY SEA FACE, MUMBAI 400 007. PAN AAACN-3646-E 2. ACIT, RANGE 5 (2), AAYAKAR BHAVAN, M.K. MARG, MU MBAI 020. 3. CIT (A)-V, MUMBAI 400 051. 4. CIT, M.C.-V, MUMBAI. 5. D.R. B BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI. SNO DATE INITIALS 1 DRAFT DICTATED ON 19-05-2010 SR.P.S. 2. DRAFT PLACED BEFORE AUTHOR 20-05-2010 SR.P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 20-05-2010 V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 20-05 -2010 A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS -05-201 0 SR.P.S. 6. KEPT FOR PRONOUNCEMENT ON -05-2010 SR.P.S. 7. FILE SENT TO THE BENCH CLERK -05-2010 SR.P.S. 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER