ELBEE SERVICES LTD, MUMBAI V. ADDL CIT RG 8(1),

ITA 5400/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62476 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2001-2002
• Appeal Filed On: 19-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Assessment record; Condonation of delay
• Section: 143(3); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI N K BILLAIYA, AM ITA NO. 5399/MUM/2011 (ASSESSMENT YEAR 2003-04) ITA NO. 5400/MUM/2011 (ASSESSMENT YEAR 2001-02) ITA NO. 5401/MUM/2011 (ASSESSMENT YEAR 2002-03) ELBEE SERVICES LTD C/O IST FLOOR 385 CARDINAL GRACIUS ROAD CHAKLA ANDHERI(E) MUMBAI 69 VS THE ASST COMMR OF INCOME4 TAX 8(1), MUMBAI (APPELLANT ) (RESPONDENT) PAN NO. AAACE1583F ASSESSEE BY SH MEHUL SHAH REVENUE BY SH B JAYA KUMAR DT.OF HEARING 5 TH JUNE 2012 DT OF PRONOUNCEMENT 8 TH , JUNE 2012 ORDER PER BENCH; THESE 3 APPEALS BY THE ASSESSEE ARE DIRECTED AGAINS T THE COMPOSITE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) DATED 27.4 .2010 FOR THE ASSESSMENT YEARS 2001 02, 2002- 03 AND 2003 04 RESPECTIVELY. 2 THE ASSESSEE HAS RAISED COMMON GROUNDS IN THESE A PPEALS. THE GROUND RAISED FOR THE ASSESSMENT YEAR 2003-04 IS REPRODUCED AS UN DER: 1. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DISMISS ING THE APPEAL WITHOUT OFFERING SUFFICIENT OPPORTUNITY OF BEING HEARD IN THE MATTER; 2. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING THAT THE APPEAL WAS DELAYED BY FOUR YEARS, AND ALLEGING THAT YOUR APPELL ANT DID NOT ASSIGN ANY ELBEE SERVICES LTD 2 REASON FOR THE DELAY, WITHOUT REFERRING TO THE LETTER D ATED JANUARY 21, 2010 OF YOUR APPELLANT WHERE REASONS FOR THE DELAY OF SEVEN D AYS WERE EXPLAINED. 3 WE HAVE HEARD THE LEARNED A.R. OF THE ASSESSEE AS WELL AS THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LEA RNED A.R. OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSMENT WAS FRAMED UNDER SECT ION 144 FOR THE ASSESSMENT YEAR 2003-04 AND UNDER SECTION 143(3) READ WITH SEC TION 147 FOR THE ASSESSMENT YEAR 2002 03 AND 2001- 02. THE LEARNED A.R. OF THE AS SESSEE HAS SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEALS FILED BY THE ASSESSEE IN LIMINIE ON THE GROUND OF BARRED BY LIMI TATION. HE HAS FURTHER SUBMITTED THAT THE COMMISSIONER OF INCOME TAX(APPEALS) DISMIS SED THE APPLICATION FOR CONDONATION OF DELAY WITHOUT GIVING ANY OPPORTUNITY OF HEARING TO THE ASSESSEE. RATHER, THE COMMISSIONER OF INCOME TAX(APPEALS) HA S EVEN NOT ISSUED ANY NOTICE OF HEARING TO THE ASSESSEE AND THEREFORE; THERE IS A V IOLATION OF PRINCIPLE OF NATURAL JUSTICE WHILE DECIDING THE APPEALS FILED BY THE ASS ESSEE. THE LEARNED AR HAS SUBMITTED THAT DUE TO CHANGE OF ADDRESS OF THE ASSE SSEE COMPANY, WHICH WAS SHIFTED FROM 75 NEHRU ROAD, VILE PARLE EAST, MUMBAI 400 099 TO THE NEW REGISTERED ADDRESS AT SHED NO. 8, GALA NO.4/A, GROUND FLOOR, A RIHANT COMMERCIAL COMPLEX, BHIWANDI DIST THANE 421 302, THE ASSESSEE RECEIVED THE ASSESSMENT ORDER ONLY ON 14 TH DECEMBER 2009. 3.1 THE LEARNED A.R. OF THE ASSESSEE HAS SUBMITTED THAT THERE WAS A DELAY OF ONLY 5 DAYS IN FILING THE APPEALS WHEREAS THE COMMISSION ER OF INCOME TAX(APPEALS) HAS DISMISSED THE APPEALS OF THE ASSESSEE BY HOLDING TH AT THE APPEALS FILED BY 4 YEARS DELAYED WITHOUT ANY REASONABLE CAUSE. THE LEARNED A.R. OF THE ASSESSEE HAS REFERRED THE LETTER DATED 21 ST JANUARY 2001 FILED BEFORE THE COMMISSIONER OF INCO ME TAX(APPEALS) AND SUBMITTED THAT THE ASSESSEE HAS E XPLAINED THE DELAY IN RECEIVING ELBEE SERVICES LTD 3 THE ASSESSMENT ORDER BECAUSE OF CHANGE OF ADDRESS, WHICH HAS NOT BEEN CONSIDERED BY THE COMMISSIONER OF INCOME TAX(APPEAL S) WHILE DECIDING THE APPEALS. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE COMPANY WAS UNDER LIQUIDATION AND BY THE ORDER OF HONBLE HIGH COURT DATED 21 ST OCTOBER 2008, THE ASSESSEE COMPANY WAS ORDERED TO BE WIND-UP IN THE COMPANY PE TITION NUMBER 934 OF 2001, 4110 OF 2004; 507 OF 2004 AND 612 OF 2004. 3.2 THE LEARNED A.R. OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAD DULY EXPLAINED THE DELAY IN RECEIVING THE ASSESSMENT ORD ER AND THEREFORE, THE DELAY IN FILING THE APPEALS WAS ONLY 5 DAYS FROM THE DATE OF RECEIPT OF ASSESSMENT ORDER WHICH SHOULD HAVE BEEN CONDONED BY THE COMMISSIONER OF INCOME TAX(APPEALS). IN SUPPORT OF HIS CONTENTION, THE LEARNED A.R. OF T HE ASSESSEE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF COLLE CTOR, LAND ACQUISITION VS MASTER KATIJI AND OTHERS 1987 AIR 1353(SC). 3.3 ON THE OTHER HAND THE LEARNED DR HAS VEHEMENTL Y OPPOSED TO THE CONTENTION OF THE LEARNED A.R. AND SUBMITTED THAT T HE ASSESSEE HAS NEVER INFORMED THE ASSESSING OFFICER ABOUT THE CHANGE OF ADDRESS. WHEN THE ASSESSEE WAS DUTY BOUND TO INFORM THE TAXING AUTHORITIES ABOUT THE CH ANGE OF ADDRESS AND PARTICULARLY THE REGISTERED ADDRESS OF THE ASSESSEE, THEN IN THE ABSENCE OF THE FRESH ADDRESS AVAILABLE WITH THE AUTHORITIES, THERE WAS NO FAULT ON THE PART OF THE ASSESSING OFFICER FOR DELAY IN SERVING THE ASSESSMENT ORDER ON THE AS SESSEE. THE LEARNED A.R. HAS FURTHER SUBMITTED THAT THE COMMISSIONER OF INCOME T AX(APPEALS) HAS NOT ADMITTED THE APPEAL OF THE ASSESSEE; THEREFORE, THERE WAS N O QUESTION OF ISSUING ANY NOTICE TO THE ASSESSEE BEFORE PASSING THE IMPUGNED ORDER. 4 AFTER CONSIDERING THE RIVAL CONTENTION AS WELL AS RELEVANT MATERIAL ON RECORD, WE FIND THAT THE COMMISSIONER OF INCOME TAX(APPEALS ) DISMISSED THE APPEALS OF THE ELBEE SERVICES LTD 4 ASSESSEE IN LIMINIE WITHOUT EVEN ISSUING NOTICE TO THE ASSESSEE. IT IS SETTLED PROPOSITION OF LAW THAT EVEN WHILE DECIDING THE CONDONATION OF DELAY THE PARTIES SHOULD BE GIVEN AN APPROPRIATE OPPORTUNITY TO EXPLAIN THE DEL AY IN FILING THE APPEALS. SINCE THE COMMISSIONER OF INCOME TAX(APPEALS) HAS NOT GI VEN AN OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE DECIDING THE CONDONATION OF DELAY IN FILING THE APPEALS, THERE IS AN APPARENT VIOLATION OF PRINCIPLE OF NATU RAL JUSTICE. 5 APART FROM THIS, WHEN THE ASSESSEE WAS UNDER LIQU IDATION AND FINALLY ORDERED TO BE WINDING UP BY THE HONBLE HIGH COURT AND THER E IS A CHANGE IN THE REGISTERED ADDRESS OF THE ASSESSEE DUE TO WHICH THE ASSESSMENT ORDERS FOR THE RESPECTIVE ASSESSMENT YEARS WERE STATED TO HAVE BEEN SERVED ON THE ASSESSEE ONLY ON 14 TH DEC 2009, THAN THE DELAY IN FILING THE APPEALS WOULD B E ONLY FOR 5 DAYS. HOWEVER, THIS FACT OF RECEIVING THE ASSESSMENT ORDER ONLY ON 14 D ECEMBER 2009 REQUIRES TO BE VERIFIED FROM THE ASSESSMENT RECORD AND IN THE ABSE NCE OF RELEVANT RECORD, THIS FACT CANNOT BE VERIFIED IN THESE PROCEEDINGS. HENCE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER OF THE COMMISSIONER OF INC OME TAX(APPEALS) AND REMAND THE MATTER FOR FRESH ADJUDICATION OF THE APP EALS OF THE ASSESSEE AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5.1 IT IS PERTINENT TO MENTION THAT IF THE ASSESSME NT ORDERS WERE SERVED ONLY ON 14 TH DEC 2009, THAN THE DELAY IN FILING THE APPEALS IS O NLY OF 5 DAYS AND DESERVES TO BE CONDONED AS THE REASONS EXPLAINED BY THE ASSESSEE A RE SUFFICIENT TO COME TO THE CONCLUSION THAT THERE WAS REASONABLE CAUSE WHICH WA S PREVENTED THE ASSESSEE FROM FILING THE APPEALS WITHIN THE PERIOD OF LIMITA TION. WE ACCORDINGLY DISPOSE OF THE APPEALS OF THE ASSESSEE IN THE ABOVE TERMS. ELBEE SERVICES LTD 5 6 IN THE RESULT THE APPEALS FILED BY THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSE ORDER PRONOUNCED ON THIS 8 TH DAY OF JUNE 2012 SD/- SD/- ( N K BILLAIYA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 8 TH , JUNE 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI