M.B. EDULJEE GASSINATH SONS, MUMBAI V. DCIT CEN CIR 7, MUMBAI

ITA 4764/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9478 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-11-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 14-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI I. B. BANSAL, J.M. AND SHRI SANJAY AROR A, A.M. ITA NOS. : 4764 & 4765/MUM/2011 ASSESSMENT YEARS: 1998-99 & 1999-2000 M. B. EDULJEE CASSINATH SONS, CASSINATH BUILDING, 17, A.K. NAYAK MARG, OPP. TO NEW EXCELSIOR CINEMA, MUMBAI-400 001 [PAN NO.: AAAFM 0745 J] VS. DY. CIT, CENTRAL CIRCLE 7, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NISHANT THAKKAR RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARING : 26.11.2012 DATE OF PRONOUNCEMENT : 05.12.2012 ORDER PER SANJAY ARORA, AM : THESE ARE A SET OF TWO APPEALS BY THE ASSESSEE, A P ARTNERSHIP FIRM, ARISING OUT OF SEPARATE ORDERS BY THE COMMISSIONER OF INCOME TAX ( APPEALS)-23, MUMBAI (CIT(A) FOR SHORT) OF EVEN DATE (31.03.2011), DISMISSING TH E ASSESSEES APPEALS CONTESTING ITS ASSESSMENTS U/S. 143(3) R.W.S. 147 OF THE INCOME TA X ACT, 1961 (THE ACT HEREINAFTER) FOR TWO CONSEQUENT YEARS, BEING ASSESSMENT YEARS (AYS) 1998-99 AND 1999-2000, VIDE ORDERS DATED 29/3/2006 AND 27/3/2006 RESPECTIVELY. 2.1 AT THE VERY OUTSET, IT WAS POINTED OUT BY THE LD. AR, THE ASSESSEES COUNSEL, WITH REFERENCE TO PARA 2.3 OF THE IMPUGNED ORDER, WHICH IS IDENTICAL FOR BOTH THE YEARS AND READS AS UNDER, THAT THE IMPUGNED ORDERS ARE ESSENT IALLY EX PARTE ORDERS INASMUCH AS THE FIRST APPELLATE AUTHORITY PROCEEDED TO DECIDE ITS A PPEALS DESPITE NON APPEARANCE ON ITS PART ITA NOS.: 4764 & 4765/MUM/2011 M. B. EDULJEE CASSINATH SONS V. DY. CIT, MUMBAI 2 ON 22.03.2011, TO WHICH DATE THE HEARING (FOR BOTH THE YEARS) WAS ADJOURNED ON ITS REQUEST. THE NON APPEARANCE WAS FOR EXTENUATING REA SONS AND THERE IS NOTHING TO INFER NON PROSECUTION OF ITS APPEALS BEFORE THE FIRST APPELLA TE AUTHORITY. AS SUCH, RESTORATION BACK TO THE FILE OF THE LD. CIT(A) FOR PROPER REPRESENTATIO N OF ITS CASE BEFORE HIM, WAS PRAYED FOR: 2.3 A COPY OF THE ASSESSING OFFICERS REPORT WAS FURNIS HED TO THE APPELLANT FOR ITS COMMENTS. A PAPER BOOK WAS FILED IN RESPONSE FURNIS HING COPIES OF THEIR REPLIES FILED BEFORE THE ASSESSING OFFICER. A SHORT ADJOURN MENT WAS ALSO SOUGHT AND THE CASE WAS ADJOURNED TO 09-03-2011 AT 11:30 A.M. EVEN ON 09-030-2011 ADJOURNMENT WAS SOUGHT AND WAS GRANTED FOR 22-03-20 11 AT 11:30 A.M. HOWEVER, NONE APPEARED. IN THESE CIRCUMSTANCES, THEREFORE, T HE APPEAL IS FINALIZED ON THE BASIS OF THE MATERIALS ON RECORD . 2.2 THE LD. DR, ON BEING QUESTIONED QUA THE SAID PROPOSITION ADVANCED BY THE LD. AR BY THE BENCH, DID NOT RAISE ANY OBJECTION THERETO. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE RELEV ANT MATERIAL ON RECORD. IT IS TRUE THAT THE FIRST APPELLATE AUTHORITY HAS PASSED AN OR DER ON MERITS, WITH REFERENCE TO THE MATERIAL ON RECORD, FOR BOTH THE YEARS. AT THE SAME TIME, GRANT OF OPPORTUNITY FOR HEARING IS INTEGRAL TO THE PROCESS OF ADJUDICATION, SO MUCH SO THAT ITS ABSENCE VIOLATES A BASIC PRINCIPLE OF NATURAL JUSTICE. FURTHER, THOUGH THE A SSESSEE HAD ALSO APPLIED FOR AN ADJOURNMENT ON AN EARLIER DATE, WHICH STOOD ALLOWED BY THE LD. CIT(A), IT FAILED TO ATTEND ON THE DATE TO WHICH THE HEARING STOOD ADJOURNED, W ITHOUT EXHIBITING ANY REASONS FOR THE SAME, SO THAT ITS CONDUCT WAS CLEARLY INFERRED AS I N DISREGARD TO THE DUE PROCESS OF LAW BY HIM. WE, THOUGH NOT IN DISAGREEMENT WITH THE SAID I NFERENCE BY THE LD. CIT(A), YET, ARE OF THE VIEW THAT HE SHOULD HAVE GRANTED ONE MORE OPPOR TUNITY OF HEARING TO THE ASSESSEE, CLEARLY STATING IN THE NOTICE THAT ON A FAILURE TO RESPOND ON THE DATE SPECIFIED, HE SHALL PROCEED TO DECIDE THE ASSESSEES APPEAL/S ON THE BA SIS OF THE MATERIAL ON RECORD. THIS, IN OUR VIEW, WOULD HAVE SERVED AS A FINAL NOTICE TO TH E ASSESSEE AND ALSO MET THE ENDS OF THE JUSTICE, WHICH INCLUDES FAIRNESS OF PROCEDURE AS WE LL. UNDER THE CIRCUMSTANCES, THEREFORE, WE ARE INCLINED TO ACCEPT THE ASSESSEES REQUEST FO R A RESTORATION BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR A DECISION ON MERITS IN ACCORDANCE WITH LAW, AND AFTER ITA NOS.: 4764 & 4765/MUM/2011 M. B. EDULJEE CASSINATH SONS V. DY. CIT, MUMBAI 3 AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO TH E ASSESSEE, IN PURSUANCE TO ITS GROUND NO. 1 FOR BOTH THE YEARS. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 5 TH DAY OF NOVEMBER, 2012 - SD/- ( I. P. BANSAL ) SD/- ( SANJAY ARORA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATE: 05/12/2012 COPY FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C.I.T. CONCERNED 4. THE CIT(A) 5 THE DR, B BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR ROSHANI ITAT, MUMBAI BENCHES, MUMBAI