KANJI MANJI KOTHARI & CO., MUMBAI V. ITO WD 13(2)(2), MUMBAI

ITA 4808/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70863 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: DR P DANIEL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 4808/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2005-06 M/S.KANJI MANJI KOTHARI & CO, 49, MASJID BUNDER RD. MUMBAI 400009 % % % % / VS. THE ITO, WARD 13(2)(2), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ' '# ./ ( ./ PAN/GIR NO. : AAAFK 1335J ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , '/ APPELLANT BY DR. P.DANIEL *+') 7 , ' /RESPONDENT BY SHRI S.S.RANA % 7 8# / DATE OF HEARING : 03/09/2013 9 & 7 8# / DATE OF PRONOUNCEMENT : 03/09/2013 ': / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-24, MUMBAI DATED 23/11/2011 FO R ASSESSMENT YEAR 2005- 06. GROUNDS OF APPEAL READ AS UNDER: 1. THE LEARNED AO ERRED IN LEVYING A PENALTY AND T HE LEARNED CIT(A) ERRED IN CONFIRMING THE PENALTY ON VARIOUS ADDITIONS MADE TO THE INCOME DISCLOSED. 2. THE LEARNED CIT (A) ERRED IN CONFIRMING THE PENA LTY WITHOUT DISCUSSING THE MERIT OF THE CASE AND MERIT OF THE ADDITIONS AND LEVY OF PENALTY AND THEREFORE THE SAME IS BAD IN LAW. 3. THE LEARNED AO DID NOT MENTION ABOUT THE SATISFA CTION FOR LEVY OF PENALTY. 4. THE LEARNED AO ERRED IN WORKING OUT THE PENALTY OF THE TAX SOUGHT TO BE EVADED. ./ I.T.A. NO. 4808/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2005-06 2 5. THE PENALTY LEVIED MAY PLEASE BE CANCELLED OR IN THE ALTERNATIVE THE PENALTY MAY BE SET ASIDE. 2. THE ASSESSEE HAD FILED AN APPEAL BEFORE LD. CIT (A) CONTESTING THE LEVY OF PENALTY OF RS.4,39,674/-, WHICH WAS LEVIED ON ACC OUNT OF VARIOUS ADDITIONS. LD. CIT(A) HAS PROVIDED SEVERAL OPPORTUNITIES TO THE AS SESSEE. IN VIEW OF NON- COMPLIANCE BY THE ASSESSEE LD. CIT(A) HAS DISMISS ED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT ASSESSEE IS NOT INTERES TED IN PURSUING THE APPEAL AND NO SUBMISSIONS HAVE BEEN MADE BY THE ASSESSEE A GAINST THE LEVY OF CONCEALMENT PENALTY. 3. AT THE OUTSET IT WAS SUBMITTED BY LD. AR THAT TH E QUANTUM APPEAL IS PENDING FOR HEARING BEFORE THE TRIBUNAL. HE SUBMIT TED THAT EVEN OTHERWISE, LD. CIT(A) WAS REQUIRED TO DECIDE THE APPEAL ON MERITS AS PER DECISION OF TRIBUNAL IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS. JCIT, 7 4 ITD 339 (AHD), WHEREIN IT HAS BEEN HELD THAT IT IS OBLIGATORY FOR LD. CIT(A) TO PASS SPEAKING ORDER STATING THE POINTS RAISED IN APPEAL, HIS DECISION THEREON AND REASONS FOR SUCH DECISION. THEREFORE, HE SUBMITTED THAT IT WAS HELD BY THE TR IBUNAL THAT LD. CIT(A) IS NOT PERMITTED TO DISMISS THE APPEAL IN-LIMINE, LD. CIT( A) IS DUTY BOUND TO DECIDE THE APPEAL ON MERITS. HE, THEREFORE, SUBMITTED THAT TH E MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-AD JUDICATE THE APPEAL FILED BY THE ASSESSEE ON MERITS AFTER GIVING THE ASSESSEE A REAS ONABLE OPPORTUNITY OF HEARING. HE SUBMITTED THAT ASSESSEE UNDERTAKES TO EXTEND FU LL CO-OPERATION DURING THE COURSE OF HEARING OF THE APPEAL. 4. ON THE OTHER HAND, LD. DR SUBMITTED THAT LD. CIT(A) HAS RIGHTLY DISMISSED THE APPEAL FILED BY THE ASSESSEE AS ASSES SEE FAILED TO COMPLY WITH THE NOTICES ISSUED BY LD. CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. ACCORDING TO AFOREMENTI ONED DECISION OF ADMEDABAD ITAT IT HAS BEEN HELD THAT LD. CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON- PROSECUTION SIMPLY BECAUSE ASSESSEE HAD FAILED TO P UT IN APPEARANCE ON VARIOUS DATES OF HEARING. THE TRIBUNAL AFTER HOLDING SO HA S HELD THAT IMPUGNED ORDER ./ I.T.A. NO. 4808/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2005-06 3 WAS TO BE SET ASIDE AND LD. CIT(A) IS DIRECTED T O DISPOSE OF THE APPEAL AFRESH. RESPECTFULLY FOLLOWING THE AFOREMENTIONED DECISION OF ITAT, WE SET ASIDE THE IMPUGNED ORDER PASSED BY LD. CIT(A) AND DIRECT HIM TO RE-ADJUDICATE THE APPEAL FILED BY THE ASSESSEE ON MERITS AFTER GIVING THE A SSESSEE A REASONABLE OPPORTUNITY OF HEARING. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS CONSIDERED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 03/09/2013 . ': 7 & #' ; <%= 03/09/2013 7 > SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; <% DATED 03/09/2013 ': ': ': ': 7 77 7 *8?@ *8?@ *8?@ *8?@ A'@&8 A'@&8 A'@&8 A'@&8 / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. B ( ) / THE CIT(A)- 4. B / CIT 5. @C> *8% , , / DR, ITAT, MUMBAI 6. >D E / GUARD FILE. ':% ':% ':% ':% / BY ORDER, +@8 *8 //TRUE COPY// F FF F / G G G G (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS