SURLUX HEALTH CENTRE LTD, MUMBAI V. ACIT CEN CIR 31, MUMBAI

ITA 5253/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71899 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-11-2013
• Assessment Year: 1994-1995
• Appeal Filed On: 29-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GIRIJA DAYAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 5253 & 5254 / M/ 13 ASSESSMENT YEAR: 1994 - 95 & 1995 - 96 M/S. SURLUX HEALTH CENTRE LTD. 3A, BLUECHIP, PRAKASH CHAMBER,77 NAGINDAS MASTER ROAD, FORT, MUMBAI 400 023. PAN: AAFCS2646J VS. ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 31, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) ASSESSEE BY : SHRI HITESH SHAH, A.R. REVENUE BY : SHRI GIRIJA DAYAL, D.R. DATE OF HEARING : 20.11.3 DATE OF PRONOUNCEMENT : 11.12.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: BOTH THE ABOVE NOTED APPEAL S HAVE BEEN FILED BY TH E ASSESSEE AGAINST T WO SEPARATE ORDER S OF THE CIT(A) DATED 18.10.10 RELEVANT TO ASSESSMENT YEAR S 1994 - 95 & 1995 - 96 RESPECTIVELY . AS THE FACTS AND ISSUES INVOLVED IN BOTH THE APPEALS ARE SIMILAR IN NATURE, HENCE THE SAME ARE DISPOSED OFF WITH THIS COMMON O RDER. FOR THE SAKE OF CONVENIENCE FACTS HAVE BEEN TAKEN FROM ITA NO.5253/M/13. ITA NO. 5253/M/13 2. THIS IS THE SECOND ROUND OF APPEAL. IN THE FIRST ROUND THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF THE INCOME TAX ACT AND THE APPEAL AGAINST T HE SAID ORDER WAS DISMISSED BY THE CIT(A) VIDE ORDER DATED 29.04.99. ITA NO .5253 & 5254 /M/13 M/S. SURLUX HEALTH CENTRE LTD. 2 AGAINST THE ORDER OF THE LD. CIT(A) DATED 29.04.99 THE ASSESSEE WENT IN APPEAL BEFORE THE TRIBUNAL (ITAT). THE TRIBUNAL VIDE ORDER DATED 07 .0 2 . 0 8 SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER BACK TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY BEING HEARD TO THE ASSESSEE. 3. IN COMPLIANCE TO THE ORDER OF THE TRIBUNAL , LD. CIT(A) SENT NOTICE DATED 24.09.10 TO THE ASSESSEE FOR HIS APPEARANCE BEFORE HIM ON 12.10.10 BUT THE NOTICE WAS RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARK LEFT. THE LD. CIT(A) FURTHER OBSERVED THAT THERE WERE OTHER APPEALS OF THE ASSESSEE AND IN THOSE APPEALS ALSO THE NOTICE SENT ON THE AD DRESSES AVAILABLE WITH THE DEPARTMENT WERE RETURNED BACK UN - SERVED. LD. CIT(A) THUS OBSERVED THAT THE ASSESSEE WAS NOT INTERESTED IN PURSUING HIS APPEAL. HE THEREFORE DISMISSED THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER. 4. THE LD. A.R. BEFORE US HAS SUBMITTED THAT THE ASSESSEE COMPANY WAS FACING LOSSES AND AS SUCH THERE WAS FREQUENT CHANGE OF ADDRESSES. THE ASSESSEE DID NOT RECEIVE THE NOTICE FROM THE CIT(A) AND THERE WAS NO INTENTIONAL ABSENCE OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATE OF HEA RING. HE HAS FURTHER BROUGHT OUR ATTENTION TO THE FACT THAT THE CIT(A) IN THE IMPUGNED ORDER HAS NOT MENTIONED AS TO AT WHAT ADDRESS THE NOTICE WAS SENT TO THE ASSESSEE. HE HAS FURTHER BROUGHT OUR ATTENTION TO FORM NO.35 WHERE THE ADDRESS OF THE ASSESSEE HAS BEEN MENTIONED AS UNDER : SURLUX HEALTH CENTRE LTD. 113, MAKER CHAMBERS, NARIMAN POINT, MUMBAI 400 021 5. HE HAS FURTHER BROUGHT OUR ATTENTION TO THE ORDER OF THE TRIBUNAL DATED 07 .02.0 8 IN COMPLIANCE OF WHICH THE CIT(A) HAD ISSUED NOTICE TO THE ASSESSEE. ITA NO .5253 & 5254 /M/13 M/S. SURLUX HEALTH CENTRE LTD. 3 A PERUSAL OF THE ORDER DATED 07 .02.0 8 OF THE ITAT REVEALS THAT THE ADDRESS OF THE ASSESSEE HAS BEEN MENTIONED AS UNDER: SURLUX HEALTH CENTRE LTD. D - 5 , PLOT NO.57, S.V.P. NAGAR, ANDHERI (W) , MUMBAI 53 6. THERE IS NO EVIDENCE ON THE FILE FROM WHICH IT CAN BE GATHERED THAT THE NOTICE TO THE ASSESSEE BY THE CIT(A) WAS SENT ON THE ADDRESS MENTIONED IN THE ORDER OF THE ITAT. THE REASONABLE PRESUMPTION IS THAT THE NOTICE MIGHT HAVE BEEN SENT BY THE CIT(A) AT THE ADDRESS WH ICH WAS MENTIONED IN FORM NO.35 [OPENING FORM OF THE APPEAL BEFORE THE CIT(A)] . IT MAY BE FURTHER OBSERVED THAT IN FORM NO.36 (OPENIN G FORM OF THE APPEAL BEFORE US), THE ASSESSEE HAS MENTIONED ANOTHER ADDRESS ( AS MENTIONED IN THE TITLE OF TH IS ORDER) . FR OM THE ABOVE FACTS IT CAN BE REASONABLY GATHERED THAT DUE TO FREQUENT CHANGES IN THE ADDRESS OF THE ASSESSEE , NOTICE COULD NOT BE DELIVERED TO IT. THERE WAS NO DELIBERATE OR INTENTIONAL ABSENCE OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATE OF HEARING. SO TAKING INTO VIEW THE OVERALL FACTS AND CIRCUMSTANCES, WE SET ASIDE THE IMPUGNED ORDER AND DIRECT THE CIT(A) TO DECIDE THE MATTER ON MERITS IN TERMS OF THE ORDER OF THE ITAT DATED 07 .02.0 8 . HOWEVER, TO AVOID ANY DELAY OR CONFUSION ABOUT THE ADDRESS OF T HE ASSESSEE OR DATE OF HEARING ETC. , WE DIRECT THAT THE ASSESSEE WILL APPEAR BEFORE THE CIT(A) ON 23.12.13 AND THEREAFTER THE CIT(A) WILL DECIDE THE CASE AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE A SSESSEE ON THE SAID DATE OR ANY OTHER DATE AS MAY B E DIRECTED BY HIM . N O FRESH NOTICE WILL BE ISSUED TO THE ASSESSEE RATHER THE ASSESSEE IS DIRECTED TO APPEAR ON THE ABOVE DATE BEFORE THE CIT(A). THE ABOVE DATE HAS BEEN CONVEYED TO THE LD. D.R. ALSO. ITA NO .5253 & 5254 /M/13 M/S. SURLUX HEALTH CENTRE LTD. 4 ITA NO.5254/M/13 8. IN THIS CASE ALSO THE MATTER WA S RESTORED BACK, BY THE TRIBUNAL VIDE ITS ORDER DATED 29.08.07, TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH ON MERITS AFTER AFFORDING A REASONABLE OPPORTUNITY BEING HEARD TO THE ASSESSEE. 9. THE CIT(A) VIDE IMPUGNED ORDER DISMISSED THE APPEAL OF THE ASS ESSEE FOR WANT OF PROSECUTION CITING SIMILAR REASONS AS DISCUSSED ABOVE IN ITA NO.5253/M/13. IN VIEW OF OUR OBSERVATIONS MADE ABOVE, THE ORDER OF THE CIT(A) IN THIS CASE IS ALSO SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) TO DECIDE THE SAME IN TERMS OF THE ORDER OF THE ITAT DATED 29.08.07 AND IN THIS CASE ALSO THE PARTIES ARE DIRECTED TO APPEAR BEFORE CIT(A) ON 23.12.13 AS DISCUSSED ABOVE IN ITA NO.5253/M/13 . 10. IN THE RESULT THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.12. 2013. SD/ - SD/ - ( D. KARUNAKARA RAO ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.12. 2013. * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.