NIVO CONTROLS P. LTD, MUMBAI V. ITO 1(2)(3), MUMBAI

ITA 5074/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3165 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 5074/MUM/2013 ASSESSMENT YEAR: 2009-10 NIVO CONTROLS P LTD. 8 MOHANTTA BHAWAN, OFF. E MOSES RD. WORLI MUMBAI PIN 400018 PAN AAACN6646C VS. ITO 1(2)(3) AAYAKAR BHAWAN, M. K. ROAD, MUMBAI PIN 400020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. MIHIR NANIWADEKAR RESPONDENT BY : SHRI. DURGA DUTT. DATE OF HEARING: 13/06/2016 DATE OF PRONOUNCEMENT: 15/06/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST ORDER DATED 22/04/2013 PASSED BY THE LD CIT(APPEALS)-20, MUMBAI FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER ON FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW: 1. THE LEARNED CIT(A) ERRED IN PASSING AN EX-PARTE ORDER, STATING THAT NONE WAS PRESENT FOR THE APPELLANT ON 17.4.2013, WH EN THE APPELLANT HAD ALREADY BEEN GRANTED AN ADJOURNMENT A ND CASE WAS FIXED FOR 23.4.2013. HENCE, THE ORDER OF THE LEARNE D CIT (A) DATED 22.4.2013 IS LIABLE TO BE SET ASIDE FOR TOTAL FAILU RE OF NATURAL JUSTICE. 2. WITHOUT PREJUDICE TO GROUND NO 1, THE LEARNED CI T (A) ERRED IN CONFIRMING DISALLOWANCE OF INTEREST OF RS 1,732/ F OR LATE PAYMENT OF 2 ITA NO. 5074/MUM/2013 ASSESSMENT YEAR: 2009-10 TDS, WITHOUT APPRECIATING THAT THE INTEREST IS NOT AT ALL PENAL IN NATURE, AND THE INTEREST WAS CORRECTLY CLAIMED BY T HE APPELLANT. 3. WITHOUT PREJUDICE TO GROUND NO 1, THE LEARNED CI T(A) ERRED IN CONFIRMING DISALLOWANCE OF 10% OF TRAVEL REFERENCES (AMOUNTING TO RS 246,267) WITHOUT APPRECIATING THAT THE EXPENSES WER E PROPERLY CLAIMED. THE LOWER AUTHORITIES HAD FAILED TO GIVE P ROPER OPPORTUNITY TO THE APPELLANT TO SUBSTANTIATE THE SAME. 4. THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST THE WEIGHT OF EVIDENCE, EQUITY AND NATURAL JUSTICE. 3. AT THE OUTSET, THE LD. AUTHORISED REPRESENTAT IVE (AR) FOR THE ASSESSEE SUBMITTED THAT SINCE THE IMPUGNED ORDER HAS BEEN PA SSED BY THE LD CIT(A) WITHOUT HEARING THE APPELLANT/ASSESSEE, THE SAME IS BAD IN LAW AND LIABLE TO BE SET ASIDE. TO SUBSTANTIATE HIS CONTENTION, THE LD. AR PLACED ON RECORD PHOTOCOPY OF APPLICATION DATED 16 TH APRIL 2013 SUBMITTED BY THE ASSESSEE FOR A SHORT ADJOURNMENT. THIS FACT WAS ALSO BROUGHT TO TH E NOTICE OF THE LD. DR. 4. WE HAVE PERUSED THE RECORD IN THE LIGHT OF T HE CONTENTION OF THE LD.AR. WE FIND THAT THIS CASE WAS FIXED FOR HEARING BEFORE TH E LD. CIT(A) FOR 17.04.2013. THE ASSESSEE MADE AN APPLICATION ON 16.04.2013 FOR A SHORT ADJOURNMENT ON THE GROUND THAT HIS COUNSEL WOULD BE UNABLE TO ATTE ND THE HEARING DUE TO HIS ILL HEALTH ON 17.04.2013. THE COPY OF APPLICATION CONTA INS SEAL IMPRESSION DATED 16.04.2013 AND ENDORSEMENT AS CASE IS FIXED ON 23/ 4/13. FROM THE SEAL IMPRESSION AND THE ENDORSEMENT AFORESAID IN CAN SAF ELY BE INFERRED THAT THE CASE WAS ADJOURNED TO 23.04.2013 AS REQUESTED BY TH E ASSESSEE. HOWEVER, THE IMPUGNED ORDER WAS PASSED ON 22.04.2013. WE FAIL TO UNDERSTAND, WHY THE IMPUGNED ORDER WAS PASSED ON 22.04.2013, WHEN THE C ASE WAS FIXED FOR 23.04.2013 THAT TOO WITHOUT GIVING NOTICE TO THE AS SESSEE. 5. SO IN OUR CONSIDERED VIEW, IN THE INTEREST O F JUSTICE AND FAIR PLAY, THE ASSESSEE SHOULD BE GIVEN A REASONABLE OPPORTUNITY T O CONTEST ITS CASE. WE, THEREFORE SET ASIDE THE IMPUGNED ORDER, PASSED BY T HE LD. CIT (A) IN VIOLATION OF 3 ITA NO. 5074/MUM/2013 ASSESSMENT YEAR: 2009-10 PRINCIPLE OF NATURAL JUSTICE AUDI ALTERM PARTEM , AND RESTORE THE MATTER BACK TO THE LD. CIT(A) FOR DECIDING THE APPEAL OF THE ASSES SEE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELL ANT/ ASSESSEE. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COUR T ON 15 TH . JUNE, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 15/06/2016 / 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 COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA