THIRDWAVE MERCANTILE CO P. LTD, MUMBAI V. ITO 2(3)(3), MUMBAI

ITA 5649/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9227 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 19-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: RAJEEV KHANDELWAL LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 69C; 143(3)

Judgement Text

ITA NO 5649/MUM/2016 THIRDWAVE MERCANTILE CO.PVT.LTD ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 5649/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) THIRDWAVE MERCANTILE CO. PRIVATE LIMITED 2 ND FLOOR J.K. SOMANI BUILDING BRITISH HOTEL LANE FORT, MUMBAI 400 001 / VS. INCOME TAX OFFICER 2(3)(3) AAYKAR BHAVAN M.K.ROAD MUMBAI -400 020 ! ./ ./PAN/GIR NO. AACCT-1101-E ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : RAJEEV KHANDELWAL, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 17/08/2017 / DATE OF PRONOUNCEMENT : 04/10/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX ITA NO 5649/MUM/2016 THIRDWAVE MERCANTILE CO.PVT.LTD ASSESSMENT YEAR 2012-13 2 (APPEALS)-6 [CIT(A)], MUMBAI DATED 29/07/2016 QUA CONFIRMATION TO PENALTY U/S 271(1)(C) FOR RS.1,83,482/-. 2. FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE WAS ASSESSED FOR IMPUGNED AY U/S 143(3) ON 25/03/2015 WHERE THE ASSESSEE SUFFERED CERTAIN ADDI TION U/S 69C FOR RS.5,56,005/-. CONSEQUENTLY, PENALTY PROCEEDINGS WE RE INITIATED IN THE QUANTUM ASSESSMENT AND THE ASSESSEE HAS BEEN SADDLE D WITH IMPUGNED PENALTY VIDE PENALTY ORDER DATED 30/09/201 5. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) WHERE ASSESSEE FAILED TO MAKE ANY REPRESENTATION WHICH RESULTED INTO THE ISSUE BEING DECIDED EX-PARTE QUA THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR], AT THE OUTSET , RAISED THE ISSUE OF PRINCIPAL OF NATURAL JUSTICE BY CONTENDING THAT THE ORDER OF THE FIRST APPELLATE AUTHORITY WAS AN EX-PARTE ORDER SINCE THE ASSESSEE, FOR BONA FIDE REASONS, COULD NOT CONTEST THE SAME BEFORE LD. CIT( A) AND THEREFORE, ANOTHER OPPORTUNITY BE PROVIDED TO THE A SSESSEE. LD. DR OPPOSED THE SAME ON THE GROUND THAT ADEQUATE OPPORT UNITY WAS PROVIDED TO THE ASSESSEE AND THEREFORE, THE ASSESSE E, AT THIS STAGE, IS DEBARRED FROM TAKING THIS PLEA. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS SETTLED LAW THAT PRINCIPL ES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFECTED PARTY IS GRANTE D SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUS TICE, WE RESTORE THE ITA NO 5649/MUM/2016 THIRDWAVE MERCANTILE CO.PVT.LTD ASSESSMENT YEAR 2012-13 3 MATTER BACK TO LD.CIT(A) FOR DE NOVO ADJUDICATION AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. 6. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04.10.2017 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI