RESPONSIVE SUTIP LIMITED, MUMBAI V. ITO , WD - 5 PALGHAR, PALGHAR

ITA 5070/MUM/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4937 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 31-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 5070 /MUM/20 1 8 ( / ASSESSMENT YEARS: 2014 - 15 ) RESPONSIVE SUTIP LTD. 906 - 907, INDRAPRASHTA CORPORATE, P RAHLAD NAGAR, OPP. SHELL PETROL PUMP, AHMEDABAD - 480015 . / VS. ITO, WARD - 5 A. O., AAYKAR BHAWAN, BIDCO ROAD, PALGHAR (W), PALGHAR - 401404. ./ ./ PAN/GIR NO. : AAECR6423K ( / APPELLANT ) .. ( / R ESPONDENT ) / DAT E OF HEARING: 06 / 01 /202 1 /DATE OF PRONOUNCEMENT: 01 /04 /2021 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 02 . 0 7 .201 8 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 03 , THANE [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2014 - 1 5 . 2 . TH E ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) THAT THE ORDER OF THE LEARNED ASSESSING OFFICER IS BAD IN LAW AND ON THE FACTS OF THE CASE. 2) THAT THE ASSESSMENT WAS MADE WITHOUT JURISDICTION AS THE ASSESSEE COMPANY HAD SHIFTED ITS CORPO RATE OFFICE TO G - 54, G BLOCK, VISWAS PARK, UTTAM NAGAR, NEW DELHI - 110 059. IT INFORMATION WAS GIVEN VIDE LETTERS DATED 30.09.2015 AND 22.01.2016 ALONG WITH PAN PARTICULAR FROM INCOME TAX PAN SERVICE UNIT. 3) THAT THE ASSESSEE COMPANY MADE THE NECESSA RY COMPLIANCE OF NOTICE U/S 142 (1) OF THE INCOM TAX ACT 1961 DATED 30.09.2016 VIDE LETTER DATED 30.11.2016. 4) THAT THE ALLEGED NOTICES DATED 07.11.2016 AND 06.12.2016 WAS NOT SERVED ON THE ASSESSEE COMPANY AT THE LATEST COMMUNICATED ADDRESS. THE NOT ICE DATED 15.06.2016 WAS NOT SERVED ON THE ASSESSE COMPANY AS ALLEGED IN THE IMPUGNED ASSESSMENT ORDER. ASSESSEE BY: SHRI SANJEEV KAPOOR REVENUE BY : SHRI ASHINA GUPTA ITA NO. 5070 /M/20 1 8 A. Y. 2 01 4 - 15 2 5) THAT THE ALLEGED NOTICE U/S 142 (1) DATED 06.12.2016 WAS ISSUED FIXING THE CASE FOR 13.12.2016. THE SAME WAS NOT SERVED ON THE ASSESSEE COMPANY. THE ASSESSEE COMPANY RECEIVED THE SHOW CAUSE NOTICE DATED 13.12.2016 FIXING THE CASE FOR 19.12.2016 AND NECESSARY COMPLIANCE WAS MADE VIDE LETTER DATED 15.12.2016. THE SHOW CAUSE NOTICE WAS SILENT FOR AN PENDING ISSUE /QUERY. 6) THAT NO PROCEEDINGS WER E INITIATED ON THE SAME DATE I.E. 19.12.2016. ANY SUBSEQUENT PROCEEDINGS WITHOUT ISSUE OF PROPER NOTICE ARE INVALID AND NOT ACCORDING TO LAW. 7) THAT THE LEARNED ASSESSING OFFICER WAS PREDETERMINED FOR MAKING THE ASSESSMENT WHICH IS EVIDENT FROM THE PR OPOSITION TO INITIATE PENALTY PROCEEDING U/S 271(1)(C) BEFORE COMPLETING THE ASSESSMENT, AS PER SHOW CAUSE NOTICE DATED 13.12.2016. 8) THAT THE LEARNED ASSESSING OFFICER HAS PASSED A NON - SPEAKING ORDER AND MADE THE FOLLOWING ADDITIONS/DISALLOWANCES ARB ITRARILY AND WITHOUT ANY JUSTIFICATION: PARTICULARS EXPENSES CLAIMED EXPENSES DISALLOWED MACHINERY REPAIR 35,62,077 35,62,077 INTEREST 16,23,93,410 16,23,93,410 OTHER EXPENSES 26,56,705 7,1 7,40,907 19,46,12,192 23,76,96,394 9) THAT THE LEARNED ASSESSING OFFICER HAS INCORRECTLY TREATED THE RETURNED INCOME U/S 115JB OF RS ( - ) 31,41,39,759/ - AGAINST THE NIL INCOME FILED BY THE ASSESSEE COMPANY. 10) THAT THE ASSESSEE CRAVES LEAVE TO ADD AMEND OR WITHDRAW ANY GROUND OF APPEAL AT THE TIME OR BEFORE THE HEARING OF APPEAL. 11) THAT THE LEARNED CIT (APPEALS) HAS FIXED THE HEARING DATE FOR APPEARANCE BY REPRESENTATIVE OF THE COMPANY DT. 11.07.2018, WHEREAS THE EX - PARTE ORDER WAS CONVENED BY THE LEARNED CIT (APPEALS) ON 02.07.2018 ITSELF, WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD BY THE REPRESENTATIVE OF THE COMPANY AND HAS PASSED A NON - SPEAKING ORDER, UPHO LDING THE ORDER PASSED BY THE INCOME ITA NO. 5070 /M/20 1 8 A. Y. 2 01 4 - 15 3 TAX OFFI CER. IN LIEU OF THIS, THE ORDER OF THE LEARNED CIT (APPEALS) IS BAD IN LAW. 3 . WE HAVE HEARD THE ARGUMENT S ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT ARGUED ON THIS POINT THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIF IABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE ORD ER PASSED BY THE CIT(A) DATED 02 . 0 7 .201 8 , WE FIND THAT THE CIT( A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE/REPRESENTATIVE OF THE ASSESSEE WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE ACCORDANCE WITH LAW. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. 4 . FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 IT R 1 (SC) 5 . ACCORDINGLY IN THE INTEREST OF JUSTICE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND REMIT THE ISSUE S RAISED IN THE APPEAL TO THE FILE OF THE LD. CIT(A) TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AF TER GIVING A PROPER /REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW . ITA NO. 5070 /M/20 1 8 A. Y. 2 01 4 - 15 4 6 . IN THE RESULT, THE APPEA L OF THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 01 / 04 /202 1 SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 01 / 0 4 / 202 1 VIJAY PAL SINGH/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. / BY ORDER, //TRUE CO PY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI