ORIENT TRANSPORT CO., MUMBAI V. DCIT CIR 12(3), MUMBAI

ITA 4946/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3937 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-04-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 01-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILESH SHARMADR
• Assessee Lawyers: DHIRENDRA M SHAH
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NOS.4946 & 4947/MUM/2012 ASSESSMENT YEARS: 2002-03 & 2003-04 M/S ORIENT TRANSPORT COMPANY, C/O- MANGALDAS D. SHAH & CO. 506, LOTUS HOUSE, 5 TH FLOOR, 33-A, NEW MARINE LINES, MUMBAI-400020 / VS. DCIT-12(3), 1 ST FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( /ASSESSEE) ( ! / REVENUE ) PAN. NO. AAAFO0741L / ASSESSEE BY SHRI DHIRENDRA M. SHAH ! / REVENUE BY SHRI AKHILESH SHARMA-DR # !$ % & / D ATE OF HEARING : 03/05/2016 % & / DATE OF ORDER: 17/05/2016 ITA NO.4946 & 4947/MUM/2012 M/S ORIENT TRANSPORT COMPANY 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDERS BOTH DATED 28/02/2005 & 29/05/2012 FOR A.YS. 2002-03 AND 2003-04 OF THE LD. FIRST APPELLAT E AUTHORITY, MUMBAI, CHALLENGING IMPOSITION OF PENALT Y U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2 DURING HEARING OF THESE APPEALS, SHRI DHIRENDRA M. SHAH, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT Q UANTUM ADDITION HAS BEEN DECIDED AGAINST THE ASSESSEE AND THE COMMISSIONER OF INCOME TAX (APPEAL) GRANTED PART RE LIEF TO THE ASSESSEE BUT THE TRIBUNAL REVERSED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL) AND UPHELD THE ASSESSMENT ORDER. THE ASSESSMENT YEAR 2002-03 WAS A RGUED TO BE AN EX-PARTE ORDER, THEREFORE, IT WAS REQUESTE D THAT THE SAME MAY BE SENT TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEAL) FOR ADJUDICATION ON MERIT. SO FAR AS, ASSESSMENT YEAR 2003-04, IS CONCERNED, DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NUMBER ONE AN D FOR GROUND NUMBER 2, IT WAS CONTENDED THAT IT MAY ALSO BE SENT ITA NO.4946 & 4947/MUM/2012 M/S ORIENT TRANSPORT COMPANY 3 TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPE AL). THE LD. DR, SHRI AKHILESH SHARMA, DEFENDED THE CONCLUSI ON ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , ITA NO.4946/MUM/2012 (ASSESSMENT YEAR 2002-03), IS CONCERNED, WE NOTE THAT AN EX-PARTE ORDER WAS PASSE D BY THE LD. FIRST APPELLATE AUTHORITY ON THE GROUND THAT NO TICE WAS ISSUED TO THE ASSESSEE ON 07/09/2011 FOR 27/09/2011 ON WHICH DATED NONE ATTENDED. IT IS NOWHERE MENTIONED THAT THIS NOTICE WAS ACTUALLY SERVED UPON THE ASSESSEE. FOR T HE DATE, FIXED FOR 27/02/2012, THE ASSESSEE SOUGHT ADJOURNME NT AS THE ADVOCATE OF THE ASSESSEE WAS OUT OF STATION, TH EREFORE, THE APPEAL WAS FIXED FOR 13/03/2012. HOWEVER, NOTICE OF HEARING FOR 17/05/2012 WAS ISSUED ON THAT DATE ALSO NOBODY WAS ATTENDED. IT IS NOWHERE MENTIONED THAT THE NOTICE W AS SERVED UPON THE ASSESSEE. IN VIEW OF THIS FACT, PASSING AN EX-PARTE ORDER IS NOT JUSTIFIED AND THEREFORE, WE ARE OF THE VIEW, THAT BEFORE TAKING ANY DECISION, IT IS EXPECTED THAT NOT ICE HAS TO BE SERVED UPON THE ASSESSEE. CONSIDERING THE PRINCIPL E OF ITA NO.4946 & 4947/MUM/2012 M/S ORIENT TRANSPORT COMPANY 4 NATURAL JUSTICE, WE REMAND THIS FILE TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEAL) TO DECIDE THE A PPEAL OF THE ASSESSEE ON MERIT, FOR WHICH, THE ASSESSEE BE G IVEN OPPORTUNITY OF BEING HEARD. CONSIDERING THE PAST HI STORY, THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE COMMISSIO NER OF INCOME TAX (APPEAL) WITHIN ONE MONTH FROM THE RECEI PT OF THIS ORDER. THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) IS FREE TO ADJUDICATE THE APPEAL ON A MUTUALLY DECIDED DATE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. 3. SO FAR AS, ITA NO.4947/MUM/2012, CHALLENGING CONFIRMATION OF PENALTY IS CONCERNED, WE NOTE THAT BOTH THE APPEALS/ISSUES ARE INTERLINKED, THEREFORE, THIS APP EAL OF THE ASSESSEE IS ALSO SENT TO THE FILE OF THE COMMISSION ER OF INCOME TAX (APPEAL) FOR FRESH ADJUDICATION IN ACCO RDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTU NITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THUS, THIS APPEAL OF THE ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOS ES. FINALLY, THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ITA NO.4946 & 4947/MUM/2012 M/S ORIENT TRANSPORT COMPANY 5 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 03/05/2016. SD/- SD/- ( ASHWANI T ANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ( DATED : 17/05/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 # 1 ( *+ ) / THE CIT, MUMBAI. 4. 0 0 # 1 / CIT(A)- , MUMBAI 5. 2!3 . , 0 *+& * 4 , # $ / DR, ITAT, MUMBAI 6. 5 6$ / GUARD FILE. / BY ORDER, /2+ . //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI