TRIUMPH INTERNATIONAL FINANCE INDIA LTD, MUMBAI V. ACIT CEN CIR 40, MUMBAI

ITA 4584/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2110 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2000-2001
• Appeal Filed On: 06-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIAL SPECIAL
• Keywords: Opportunity of being heard; Deemed dividend; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI. R.S. PADVEKAR (J.M.) AND SHRI. RAJENDR A SINGH (A.M.) ITA NO.4584/MUM/2009 ASSESSMENT YEAR : 2000-2001 TRIUMPH INTERNATIONAL FINANCE INDIA LTD. OXFORD CENTRE, 10, SHROFF LANE, COLABA, MUMBAI 400 005. PAN : AAACE0308A VS. ACIT CEN RG 40 AAYAKAR BHAVAN, MUMBAI 400 020. (APPLICANT) (RESPONDENT) APPLICANT BY : NONE. RESPONDENT BY : DR. P. DANIAL, SPECIAL COUNSEL O R D E R PER R.S. PADVEKAR, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLEN GING THE IMPUGNED ORDER OF THE LEARNED CIT(A)-VII, MUMBAI DATED 21.05 .2009 FOR THE ASSESSMENT YEAR 2000-2001. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS: 1. THE CIT(A), CENTRAL VII, MUMBAI (HEREINAFTER R EFERRED TO AS THE CIT(A)) ERRED FRAMING AN EX PARTE ORDER F OR NON- COMPLIANCE OF THE NOTICE OF HEARING. THE APPELLANTS CONTEND THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) OUGHT NOT TO HAVE PASSED AN EX PARTE ORDER IN AS MUCH AS THE AUTHORIZED REPRESE NTATIVE OF THE APPELLANTS DID APPEAR ON THE DATE OF HEARING. 2. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE DCIT, CENTRAL CIRCLE 40, MUMBAI (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) IN MAKING THE IMPUGNED ADDITION OF A SUM OF RS.3,66,10,678/- AS DEEMED DIVIDEND UNDER SECTION 2 (22)(E) OF THE ACT. 2. WE HAVE HEARD THE PARTIES. IN THIS CASE ASSESS EE HAS FILED AN APPLICATION FOR THE ADJOURNMENT BUT THE SAME WAS RE JECTED. THIS APPEAL IS ARISING OUT ORDER GIVING EFFECT TO THE ITATS ORDER PASSED U/S.254 OF I.T. ACT DATED 24.12.2008 AND ISSUE IS IN RESPECT OF AN ADDI TION OF RS.3,66,10,678/- ITA NO.4584/MUM/2009 ASSESSMENT YEAR : 2000-2001 2 MADE U/S.2(22)(E) OF THE ACT. THE LEARNED CIT(A) DISPOSED OF THE APPEAL FILED BY THE ASSESSEE, EX PARTE, DISMISSING THE SAM E. THE LEARNED CIT(A) HAS OBSERVED THAT APPEAL WAS FIXED ON TWO DATES BUT THE APPELLANT CHOOSE NOT TO APPEAR FOR REASON BEST KNOWN TO HIM. THE LEARNED CIT(A) ALSO OBSERVED THAT NOTICE OF HEARING WAS SENT BY REGISTE RED POST ON 23.03.2009 BUT THERE WAS NO COMPLIANCE FROM ASSESSEE AT ALL. THE ANOTHER NOTICE DATED 01.05.2009 WAS SENT RE-FIXING THE APPEAL ON 1 9.05.2009 BUT ON THAT DATE ALSO THERE IS NO COMMUNICATION FROM THE ASSESS EE. THE LEARNED CIT(A) DISMISSED THE APPEAL EX PARTE WITHOUT GIVING ANY PR OPER REASON ON MERIT. 3. WE HAVE HEARD THE PARTIES. THE LEARNED SPECIAL COUNSEL FOR THE REVENUE VEHEMENTLY OPPOSED FOR SETTING ASIDE THE MA TTER TO THE FILE OF THE LEARNED CIT(A) AND SUBMITTED THAT IN FACT THE LEARN ED CIT(A) HAS PROPERLY SERVED THE NOTICES OF HEARING TO THE ASSESSEE BUT A SSESSEE DID NOT COMPLY TO SAID NOTICES AND REMAIN ABSENT. IN OUR OPINION LE ARNED CIT(A) COULD HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRE SENT THE CASE. ANOTHER ASPECT TO BE CONSIDERED IS THAT NO REASONS ON MERIT ARE GIVEN BY THE LEARNED CIT(A) WHEN APPEAL IS DISPOSED OFF. WE ARE OF TH E CONSIDERED OPINION THAT TO RESTORE THE ENTIRE MATTER TO THE FILE OF THE LEA RNED CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, AFTER GIVING R EASONABLE OPPORTUNITY OF BEING HEARD THE ASSESSEE. THE ASSESSEE IS ALSO DIR ECTED TO FILE HIS ADDRESS FOR SERVICE OF THE NOTICE WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER TO THE LEARNED CIT(A), IF THERE IS NO CHANGE IN THE SA ME. ACCORDINGLY, ORDER OF THE CIT(A) IS SET ASIDE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS DAY OF 14 TH MAY, 2010. SD/- (RAJENDRA SINGH) (ACCOUNTANT MEMBER) SD/- (R.S. PADVEKAR) (JUDICIAL MEMBER) ITA NO.4584/MUM/2009 ASSESSMENT YEAR : 2000-2001 3 MUMBAI, DATED 14 TH MAY, 2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- , MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY- , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI