BRITISH PHARMACEUTICAL LABORATORIES, MUMBAI V. A.C.I.T. CIRCLE 14(1), MUMBAI

ITA 4530/MUM/2012

• Counselvise Citation: 453019914 RSA 2012
• Duration Of Justice: 2 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-01-2015
• Assessment Year: 1993-1994
• Appeal Filed On: 04-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER ITA NO.4530/MUM/2012 (A.Y.1993-94) M/S.BRITISH PHARMACEUTICAL LABORATORIES, C/O. M/S. IDNANI & IDNANI, ADVOCATES, 53A, MITTAL TOWER, 210, NARIMAN POINT, MUMBAI 400 021. PAN : AAAFB 6468 K (APPELLANT ) VS. THE ACIT, CIR. 14(1), 2 ND FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI 4000121. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI PR EMANAND J. DATE OF HEARING : 05/01/2015 DATE OF PRONOUNCEMENT : 05 /01/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A) DATED 14/3/2012. THE GROUNDS OF APPEAL READ AS UNDER: 1) THAT THE LEARNED COMMISSIONER HAS ERRED IN DISMI SSING THE APPEAL BY AN EX-PARTE ORDER AND HAS FAILED TO CONSIDER THE FACTS AND CIRCUMSTANCES AND THE CONCLUSION THAT THE ASSESSEE DOES NOT WANT TO PROSE CUTE THE APPEAL IS AGAINST FACTS AND UNWARRANTED. 2) THAT THE LEARNED COMMISSIONER HAS ERRED IN FAILI NG TO CONSIDER THE VARIOUS GROUNDS OF APPEAL RAISED IN THE APPEAL MEMO AND THA T THE APPELLANT HAD FILED THE FULL AND CORRECT PARTICULARS OF INCOME ALONG WI TH THE RETURN OF INCOME. 3) THAT THE LEARNED COMMISSIONER, BY NOT CONSIDERIN G THE APPELLANTS OBJECTIONS AS CONTAINED IN THE APPEAL MEMO AND GROU NDS OF APPEAL HAS ERRED IN IMPLIEDLY CONFIRMING VARIOUS ADDITIONS MADE BY T HE LEARNED ASSESSING ITA NO.4530/MUM/2012 (A.Y.1993-94) 2 OFFICER IN EX-PARTE ORDER, AND HAS FAILED TO CONSID ER THE FACTS AND CIRCUMSTANCES. 4) THAT THE LEARNED COMMISSIONER HAS ERRED IN CONFI RMING ADDITIONS ON ACCOUNT OF PURCHASES (RS. 1,00,973/-), AND GROSS PROFIT (RS.3 0,19,900/-) 5) THAT THE LEARNED COMMISSIONER HAS ERRED IN CONFI RMING THE DISALLOWANCE OF RS.L,00,000/- ON LUMP SUM BASIS OUT OF EXPENSES, AND DISALLOWANCE OF EXCISE DUTY OF RS.4,07,847/-. 2. IT IS OBSERVED FROM THE ORDER PASSED BY LD. CIT (A) THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED IN-LIMINE WITHOUT C ONSIDERING THE MERITS OF THE ISSUES ON ACCOUNT OF DEFAULT OF THE ASSESSEE OF NON-REPRESENTATION BEFORE HIM. EARLIER ALSO LD. CIT(A) HAD DECIDED THE APPEA L OF THE ASSESSEE BY WAY OF EX-PARTE ORDER WITHOUT GOING INTO MERITS OF THE APP EAL AND THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF LD. C IT(A) WITH A DIRECTION TO DECIDE THE APPEAL AFTER GIVING THE ASSESSEE A REASO NABLE OPPORTUNITY OF BEING HEARD. IT IS WRITTEN IN THE ORDER OF LD. CIT(A) TH AT THE OFFICE OF LD. CIT(A) DID NOT HAVE EFFECTIVE COMMUNICATION ADDRESS OF THE ASS ESSEE, THEREFORE, NOTICE OF HEARING WAS ISSUED AND SERVED AT THE OFFICE OF C OUNSEL, WHO REPRESENTED BEFORE ITAT. IN RESPONSE TO SUCH NOTICE SHRI . BAL DEV U. IDNANI, ADVOCATE APPEARED, WHO SUBMITTED A LETTER STATING THAT NECE SSARY DETAILS IS NOT AVAILABLE WITH HIM. HE INFORMED THAT NOTICE WAS SE RVED ON HIM BUT NONE OF THE PARTNERS HAD RESPONDED TO HIS INTIMATION AND TH US, HE WAS UNABLE TO ARGUE THE CASE ON MERITS. HE HAS ALSO PROVIDED ADD RESS OF FOUR PARTNERS ON WHICH THE NOTICES WERE ISSUED ON 24/2/2012 BUT NONE APPEARED. IT IS IN THESE CIRCUMSTANCES LD. CIT(A) HAS DISMISSED THE AP PEAL WITHOUT GOING INTO THE MERITS OF THE ADDITION. THE ASSESSEE IS AGGRIE VED, HENCE, HAS FILED AN APPEAL BEFORE US. 3. THIS APPEAL WAS EARLIER FIXED FOR HEARING ON VAR IOUS DATES AND AS BENCH WAS NOT FUNCTIONING THE MATTER WAS ADJOURNED THROUGH NOTICE BOARD AND THIS MATTER WAS FINALLY FIXED FOR HEARING ON 05 /01/2015. HOWEVER, ON 05/01/2015 NONE WAS PRESENT ON BEHALF OF THE ASSESS EE. ITA NO.4530/MUM/2012 (A.Y.1993-94) 3 4. DURING THE COURSE OF HEARING IT WAS POINTED OUT BY THE BENCH THAT ACCORDING TO THE DECISION OF AHMEDABAD ITAT IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS JOINT COMMISSIONER OF INCOME TAX VS. JCIT, 74 ITD 339 (AHD), IT IS OBLIGATORY FOR LD. CIT(A) TO PASS A SP EAKING ORDER STATING POINTS RAISED IN APPEAL, HIS DECISION THEREON AND REASON F OR SUCH DECISION AND IT IS NOT POSSIBLE FOR LD. CIT(A) TO DISMISS THE APPEAL I N-LIMINE. EVEN ACCORDING TO LATEST DECISION OF HONBLE BOMBAY HIGH COURT THE TR IBUNAL ALSO CANNOT DISMISS THE APPEAL IN-LIMINE. THEREFORE, THE MANDA TE OF LAW IS CLEAR THAT LD. CIT(A) IS DUTY BOUND TO DECIDE THE APPEAL ON MERITS . THE DECISION OF LD. CIT(A) IS THUS IS RIDDLED WITH INFIRMITY AND THE ON LY COURSE AVAILABLE WITH THE TRIBUNAL IS TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-DECIDE THE SAME ON MERITS AFTER GI VING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. IT MAY ALSO BE MENTIONED HERE THAT WITHOUT SATISFYING THE ABOUT SERVICE OF NOTICE ON T HE ASSESSEE, LD. CIT(A) HAS DISMISSED THE APPEAL IN-LIMINE. THEREFORE, ALSO THE MATTER IS REQUIRED TO BE RESTORED BACK TO HIS FILE. ACCORDINGLY, THE IMPUG NED ORDER IS SET ASIDE AND MATTER IS RESTORED BACK TO THE FILE OF LD. CIT(A) F OR DECIDING THE SAME ON MERITS AFTER GIVING THE ASSESSEE A REASONABLE OPPOR TUNITY OF HEARING. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL IS TREATED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 05/01/2015 ! '#$ % &' 05/01/2015 # ! ( SD/- SD/- ( . . /B.R.BASKARAN ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; & DATED 05/01/2015 ITA NO.4530/MUM/2012 (A.Y.1993-94) 4 ! !! ! )*+ )*+ )*+ )*+ ,+$* ,+$* ,+$* ,+$* / COPY OF THE ORDER FORWARDED TO : 1. -. / THE APPELLANT 2. )/-. / THE RESPONDENT. 3. 0 ( ) / THE CIT(A)- 4. 0 / CIT 5. +( )* , , / DR, ITAT, MUMBAI 6. (1 2 / GUARD FILE. / BY ORDER, /+* )* //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS