ITO 6(3)(1), MUMBAI V. FERROMET FORGE P. LTD, MUMBAI

ITA 4671/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8304 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Next Hearing Date: 14-02-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 08-07-2016
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Assessee Lawyers: SHRI
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 4671/M/2016 (AY 2012 - 2013 ) ITO - 6(3)(1), R.NO.524, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 20. PAN : AABCF2795B / VS. M/S. FERROME T FORGE PVT LTD., 32 - B, POTIA INDUSTRIAL ESTATE, BARUKHANA, MUMBAI - 010. ( / APPELLANT) .. ( / RESPONDENT ) C.O. NO. 194/M/2016 (ARISING FROM ITA NO.4671/M/2016) (AY 2012 - 2013 ) M/S. FERROMET FORGE PVT LTD., 32 - B, POTIA INDUSTRIAL ESTATE, BARUKHANA, MUMBAI - 010. / VS. ITO - 6(3)(1), R.NO.524, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 20. ./ PAN : AABCF2795B ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAMBIT MISHRA / RESPONDENT BY : SHRI PANKAJ AGGARWAL / DATE OF HEARING : 14.02.2017 / DATE OF PRONOUNCEMENT : 22 .02.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THE CAPTIONED APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION (CO) NO. 194/M/2016 IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (A) - 12, MUMBAI DATED 18.4.2016 FOR THE ASSESSMENT YEAR 2012 - 1 3. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE INTER - CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2 . IN THE REVENUES APPEAL ITA NO.4671/M/2016 (AY 2012 - 13), WHICH IS FILED ON 08.07.2016 AGAINST THE SAID ORDER OF THE CIT (A) - 12, MUMBAI, THE FOLLOWING GROUNDS ARE RAISED AND THEY READ AS UNDER: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN HOLDING THAT THE NOTICE U/S 143(2) OF THE ACT WAS NOT SERVED WITH THE STATUTORY TIME LIMIT WITHOUT APPRECIATING THE FACT THAT THE SAID NOTICE U/S 143(2) WAS SENT BY SPEED POST ON 24.9.2013 WHICH IS WELL WITHIN THE STATUTORY TIME LIMIT. 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN NOT CONSIDERING THE PROVISIONS CONTAINED IN SECTION 282(1) OF THE ACT, 1961 WHICH CLEARLY LAYS DOWN THAT NOTICE MAY BE MADE BY DELIVERING OR TRANSMITTING A COPY THEREOF TO THE PERSON IN SUCH MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908) FOR THE PURPOSE OF SERVICE OF SUMMONS. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN NOT CONSIDER ING THAT THE HONBLE SUPREME COURT IN THE CASE OF M/S. AJEET SEEDS LTD VS. K. GOPALA KRISHNALAH (CRIMINAL APPEAL NO.1523 OF 2014, ARISING OUT OF SPECIAL LEAVE PETITION NO.8783 OF 2013) HAS VIEWED THAT WHEN NOTICE IS SENT BY REGISTERED POST ON THE CORRECT A DDRESS SERVICE OF NOTICE IS DEEMED TO HAVE BEEN EFFECTED AT THE TIME OF WHICH THE LETTER WOULD HAVE BEEN DELIVERED IN THE ORDINARY COURSE OF BUSINESS. 3. IN THIS APPEAL, REVENUE RAISED THE ISSUE RELATING TO VALID ITY OF SERVICE OF NOTICE U/S 143(2) OF THE ACT WHEN THE SAID NOTICE WAS ACTUALLY SERVICED ON THE ASSESSEE BEYOND THE DUE DATE. AS PER THE REVENUE, THE NOTICE U/S 143(2) WAS ISSUED ON 24.9.2013 BY SPEED POST AGAINST THE DUE DATE OF 30.9.2013 CONSTITUTES A VALI D NOTICE IN VIEW OF THE PRESUMPTION THAT POSTAL AUTHORITIES CAN SERVE THE NOTICE WITHIN 24 HOURS BY POST. THEY RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AJEET SEEDS LTD VS. K. GOPALA KRISHNAIAH IN CRIMINAL APPEAL NO. 1523 OF 2014, DATED 16.7.2014. 4. ON THE OTHER HAND, IN THE CO, ASSESSEE RAISED VARIOUS ISSUES WHICH INCLUDE INVALIDITY OF THE SAID NOTICE U/S 143(2) AS THE SAME WAS SERVED ON THE ASSESSEE ON 1.10.2013, A DAY AFTER THE EXPIRY OF THE DUE DATE. IN THIS REGARD, ASSE SSEE RELIED ON THE PROVISIONS WHICH MANDATE THE REVENUE TO SERVE NOTICE BEFORE THE DUE DATE. 5. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, AT THE OUTSET, LD REPRESENTATIVES OF BOTH THE PARTIES SUBMITTED THAT THE SAID ORDER OF THE CIT (A) SUFFERS FROM B ASIC PROBLEMS AS THE SAME DOES NOT CONSTITUTE A SPEAKING ORDER ON THE ABOVE REFERRED BASIC ISSUES. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AJEET SEEDS LTD (SUPRA). ON PERUSAL OF THE FAA IN GENERAL AND PARA 5.1 IN PARTICULAR , WE FIND, WHILE PASSING THE ORDER CIT (A) RELIED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF SANJAY BADANI VS. DCIT IN ITA NOS. 5221 AND 5222/MUM/2014 , DATED 9.9 .2014. PARA 15 OF THE SAID TRIBUNALS ORDER WAS HIGHLIGHTED IN PARA 5.1 OF THE CIT (A)S ORDER. ON PERUSAL OF THE SAME, WE FIND, THE FACTS ARE DIFFERENT AND THE NOTICES U/S 143(2) WERE NOT SENT BY SPEED POST UNLIKE IN THE PRESENT CASE THERE IS NO REFERE NCE TO THE AFORESAID ORDER OF THE HONBLE SUPREME COURT. THE DECISION IN THE CASE OF SANJAY BADANI (SUPRA) REVOLVES AROUND 3 THE FACT OF SERVICE OF NOTICE BY WAY OF AFFIXTURE. THEREFORE, THE PRESUMPTION OUTLINED IN THE CASE OF M/S. AJEET SEEDS LTD (SUPRA ) BECOMES IRRELEVANT IN THAT CASE. THEREFORE, AS INFORMED BY THE PARTIES, WE DECIDE TO REMAND THE ISSUES, RAISED BY BOTH THE PARTIES IN THE REVENUES APPEAL AS WELL AS THE CO, TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION AFTER GRANTING A REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. CIT (A) IS DIRECTED TO PASS A SPEAKING ORDER AS PER THE PROVISIONS OF SECTION 250(6) OF THE ACT. ACCORDINGLY WE ORDER. THUS, ALL THE GROUNDS RAISED IN THE REVENUES APPEALS AS WELL AS THE IN THE CO ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, REVENUES APPEAL AND THE ASSESSEES CO ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE OPEN COURT ON 2 2 N D FEBRUARY, 2017. S D / - S D / - (PAWAN SINGH) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 22.02.2017 . . ./ OKK , SR. PS / 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