GOLANI & CO., MUMBAI V. ITO 18(2)(4), MUMBAI

ITA 5358/MUM/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 4706 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 22-09-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH ,MUMBAI BEFORE SHRI SHRI R.K. PANDA (AM) I.T.A.NO.5358/MUM/2009 (A.Y. 2003-04) M/S. GOLANI & CO., 314, VASAN UDYOG BHAVAN, TULSI PIPE RD., LOWER PAREL, MUMBSAI-400 013. PAN: AACFG8534D VS. INCOME-TAX OFFICER-18(2)(4), AAYKAR BHAVAN, M.K. ROAD, CHURCHGATE,MUMBAI-400 020. APPELLANT RESPONDENT APPELLANT BY NONE. RESPONDENT BY SHRI S URENDRA KUMAR. O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 11- 12-2007 OF THE CIT(A)-XVIII, MUMBAI, RELATING TO TH E ASSTT. YEAR 2003-04. THE ADJOURNMENT PETITION FILED BY THE ASSESSEE IS REJEC TED AND THE MATTER IS TAKEN UP FOR HEARING. THE DELAY IN FILING OF THIS APPEAL BY 6 DAYS IS ALSO CONDONED. 2. THE ASSESSEE IN ITS GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF THE CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN LI MINE BY APPLYING THE DECISION OF THE TRIBUNAL IN THE CASE OF CIT VS. MULTIPLAN (I NDIA) LTD. REPORTED IN 38 ITD 320 (DEL.). 3. AFTER HEARING THE LD. D.R. AND ON GOING THROUGH THE ORDER OF THE CIT(A), I FIND DUE TO NON-APPEARANCE BY THE ASSESSEE THE CIT( A) DISMISSED THE APPEAL FOLLOWING THE RATIO OF THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (I) LTD. (SUPRA) AND THE DECISION OF THE HONBLE MADHYA PRAD ESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLDER VS. CWT REPORTED I N 223 ITR 480. ADMITTEDLY, THE CIT(A) HAS NOT DECIDED THE ISSUE ON MERITS. THE REFORE, THE ORDER OF THE CIT(A) IS CLEARLY IN VIOLATION OF THE EXPRESS PROVI SIONS OF SEC. 250(6) OF THE I.T. ACT, ACCORDING TO WHICH THE ORDER OF THE CIT(A) HAS TO STATE THE POINTS ARISING IN ITA 2 THE APPEAL, THE DECISION OF THE AUTHORITY THEREON A ND THE REASONS FOR SUCH DECISION. I FIND THE AHMEDABAD BENCH OF THE TRIBUNA L, IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. V. JT.CIT REPORTED IN 74 ITD 33, WHILE DECIDING AN IDENTICAL ISSUE, HAS HELD AS UNDER : THE PROVISIONS OF SECTION 250(6) PROVIDES THAT THE APPELLATE ORDERS OF THE COMMISSIONER (APPEALS) ARE TO STATE THE POIN TS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND T HE REASONS FOR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PRO VISION IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE TRIBUNA L. SPEAKING ORDER WOULD OBVIOUSLY ENABLE A PARTY TO KNOW PRECISE POIN TS DECIDED IN HIS FAVOUR OR AGAINST HIM. ABSENCE OF THE FORMULATION O F THE POINT FOR DECISION FOR WANT OF CLARIFY IN A DECISION UNDOUBTE DLY PUTS A PARTY IN QUANDARY. SECTION 250(6) EXPRESSLY EMBODIES THE PRI NCIPLES OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MAN DATORY IN NATURE. THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPE ALS) IN VIOLATION OF THE PROVISIONS OF SECTION 256(6) COULD NOT, THEREFORE, BE SUSTAINED. 4. SINCE IN THE INSTANT CASE THE CIT(A) HAS NOT DEC IDED THE ISSUE ON MERITS AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY APPLYING THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (I) LTD., THEREFO RE, FOLLOWING THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL CITED ABOVE, I REST ORE THE MATTER TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE ON MERITS. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLO WED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 27 TH SEPTEMBER, 2010. (R.K. PANDA) ACCOUNTANT M EMBER MUMBAI: 27TH SEPT. , 2010. NG: COPY TO : ITA 3 1. ASSESSEE. 2.DEPARTMENT. 3 CIT(A)-XVIII,,MUMBAI. 4 CIT, M.C.XVIII,MUMBAI. 5.DR, SMC BENCH,MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. ITA 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 27-09-2010 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 27-09-2010 SR.PS/ 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER