MAHESH (I) EXPORT IMPORT CO., MUMBAI V. ADDL CIT RG 14(2), MUMBAI

ITA 5364/MUM/2010

• Counselvise Citation: 536419914 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 13-02-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 30-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE HONBLE PRESIDENT SHRI G.E.VEERABHADRAPPA AND SHRI D.K.AGARWAL (JM) ITA NO.5364/MUM/2010 (ASSESSMENT YEAR:2003-04) M/S MAHESH (INDIA) EXPORT IMPORT CO., 240, UDYOG BHAVAN, SONAWALA ROAD GOREGAON (EAST), MUMBAI-400063. PAN:AAFFM6597Q ADDITIONAL COMMISSIONER OF INCOME TAX RANGE -14(2), MUMBAI. APPELLANT V/S RESPONDENT DATE OF HEARING : 13.2.2012 DATE OF PRONOUNCEMENT : 22.2.2012 APPELLANT BY : NONE RESPONDENT BY : SHRI P.C.MAURYA O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 6.5.2010 PASSED BY THE LD. CIT(A) F OR THE ASSESSMENT YEAR 2003-04. 2. IN THIS CASE, THE ORIGINAL NOTICE OF DATE OF H EARING WAS SENT BY RPAD FIXING THE CASE FOR 13.9.2011. HOWE VER, THE CASE WAS ADJOURNED TO 21.11.2011 AND FINAL NOTICE OF DATE OF HEARING WAS PLACED ON NOTICE BOARD FIXING THE DATE OF HEARING ITA NO.5364/MUM/2010 (ASSESSMENT YEAR:2003-04) 2 ON 13.2.2012. HOWEVER, AT THE TIME OF HEARING, NON E WAS PRESENT ON BEHALF OF THE ASSESSEE NOR FILED ANY APP LICATION FOR ADJOURNMENT OF THE CASE. THEREFORE, IT WAS DECIDED TO DISPOSE OF THE APPEAL EX-PARTE, QUA THE ASSESSEE, ON MERITS , AFTER HEARING THE LEARNED D.R. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE FIRM IS ENGAGED IN THE BUSINESS OF IMPORTERS OF CHEMICAL S, DYES AND INTERMEDIATES FILED RETURN ON 17.11.2003 DECLARING A TOTAL INCOME OF RS.7,57,180/-. HOWEVER, THE ASSESSMENT W AS COMPLETED AT AN INCOME OF RS.86,86,900/- VIDE ORD ER DATED 29.11.2005 PASSED U/S 143(3) OF THE INCOME TAX ACT , 1961(THE ACT). WHILE COMPLETING THE ASSESSMENT, THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C ) OF TH E ACT AND ACCORDINGLY THE ASSESSEE WAS ASKED AS TO WHY PENA LTY U/S 271(1)( C ) SHOULD NOT BE IMPOSED. IN THE ABSENCE OF ANY EXPLANATION THE AO HAS IMPOSED PENALTY OF RS.13,97 ,935/- VIDE ORDER DATED 30.3.2009 PASSED U/S 271(1)(C) OF THE ACT. ON APPEAL, THE LD. CIT(A) PROVIDED VARIOUS OPPORTUN ITIES TO THE ASSESSEE. HOWEVER, IN THE ABSENCE OF ANY PERSONAL COMPLIANCE EXCEPT WRITTEN SUBMISSIONS, THE LD. CIT( A) PASSED EX-PARTE ORDER DIRECTING THE AO TO RE-CALCULATE TH E PENALTY LEVIABLE AT 100% OF THE TAX SOUGHT TO BE EVADED ON THE ITA NO.5364/MUM/2010 (ASSESSMENT YEAR:2003-04) 3 AMOUNT OF RS.8,14,690/- AND ACCORDINGLY PARTLY ALL OWED THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US TAKING FOLLOWING GR OUNDS OF APPEAL : 1. THE LEARNED CIT (A) ERRED ON FACTS AND IN LAW I N LEVYING PENA1TY AMOUNTING TO RS.13,97,935/- ON VARIOUS GROU NDS WHICH ARE ARBITRARY AND WITHOUT ANY OPPORTUNITIES O F BEING HEARD. 2. THE LEARNED CIT(A) ERRED IN, CALCULATING PENALTY LEVIABLE U/S 271 (1) (C). THE LEARNED ASSESSING OFFICER AND THE CIT (A) ALSO BOTH JUST DID COPY, PASTE OF THE ASSESSMEN T ORDER AND WITHOUT ESTABLISHING ANY REASON AND/OR CONCLUS ION FOR CONCEALMENT OF PENALTY. 3. THE LEARNED CIT (A) DID NOT POINT OUT WHY PENALT Y SHOULD BE LEVIED AND ARBITRARILY LEVIED PENALTY ON PIECEMEAL BASIS WHICH IS EVIDENT FROM THE ORDER WHICH IS HAPH AZARD IN NATURE. 4. THE LEARNED CIT (A) ERRED IN LAW & ON FACTS BY N OT GIVING PROPER &. REASONABLE OPPORTUNITY TO THE ASSESSEE BE FORE PASSING THE ORDER. 5. THE LEARNED CIT(A) ERRED IN NOT RELYING VARIOUS LEGAL HIGH COURT PRONOUNCEMENTS IN SEVERAL DECISIONS FOR GIVING JUSTICE TO THE APPELLANT. 6. THE APPELLANT CRAVES TO INSERT NEW GROUNDS, AND TO ADD, AMEND, ALTER, INSERT, DELETE ANY OF THE ABOVE GROUN DS OF APPEAL EITHER IN FULL OR IN PART ON OR BEFORE THE F INAL HEARING OF THE APPEAL. ITA NO.5364/MUM/2010 (ASSESSMENT YEAR:2003-04) 4 5. AT THE TIME OF HEARING, THE LD. DR WHILE RELYING ON THE ORDER OF THE AO AND THE LD.CIT(A) SUBMITS THAT HE H AS NO OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AND ACCORDING TO LAW. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE LD .DR AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE OBSER VE THAT NO DOUBT, THE LD. CIT(A) HAS PROVIDED VARIOUS OPPORTUN ITIES TO THE ASSESSEE. HOWEVER, WE FIND THAT ON THE LAST DATE O F HEARING I.E. ON 5.5.2010 THE ASSESSEES AUTHORIZED REPRESEN TATIVE SOUGHT ADJOURNMENT ON THE GROUND THAT THE ATTENDING PERSON WAS HELD UP IN THE OTHER INCOME TAX MATTERS AT BAN DRA-KURLA- COMPLEX, AND, THEREFORE, CAME TO ATTEND A LITTLE LATE IN THE AFTERNOON. HOWEVER, THE LD. CIT(A) WITHOUT PROVID ING ANY FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE PASSED EX- PARTE ORDER ON 6.5.2010 AFTER CONSIDERING THE WRIT TEN SUBMISSIONS DATED 2.5.2010. SINCE THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE, THEREFORE, IN THE INTERESTS OF JUSTICE, WE CONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHO ULD GO BACK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY, WE S ET ASIDE THE ORDER PASSED BY THE LD. CIT(A) TO HIS FILE TO DECID E THE APPEAL OF THE ASSESSEE AFRESH AND ACCORDING TO LAW AFTER PROV IDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ITA NO.5364/MUM/2010 (ASSESSMENT YEAR:2003-04) 5 GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTL Y ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND FEB.,2 012. SD SD (G.E.VEERABHADRAPPA) (D.K.AGARWAL ) PRESIDENT JUDICIAL MEMBER MUMBAI, DATED 22 ND FEBRUARY,2012. SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER ASSTT. REGISTRAR, ITAT, MUM BAI