SILVERMOON CONSTRUCTIONS P. LTD, MUMBAI V. ADDL CIT 5(3), MUMBAI

ITA 5790/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0575 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 27-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AARJU GARODIA
• Assessee Lawyers: S C TIWARI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER ITA NO . 5 790 /MUM. /2016 ( ASSESSMENT YEAR : 2011 12 ) SILVERMOON CONSTRUCTIONS PVT. LTD. 292, DUDHWALA HOUSE BELLASIS ROAD, MUMBAI CENTRAL MUMBAI 400 008 AAHC34217M . APPELLANT V/S ADDL. COMMISSIONER OF INCOME TAX CIRCLE 5(3), MUMBAI . RESPONDENT ASSESSE E BY : SHR I S.C. TIWARI REVENUE BY : MS. AARJU GARODIA DATE OF HEARING 01.03.2018 DATE OF ORDER 07.0 3 .2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 28 TH JULY 2017, PASSED BY THE L EARNED COMMISSIONER (APPEALS) 10 , MUMBAI, FOR THE ASSESSMENT YEAR 2011 12. 2 . BRIEF FACTS ARE, THE ASSESSEE A COMPANY IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND LETTING OUT OF PREMISES. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2011, DECLARING TOTAL INCOME OF ` 8,35,59,374. W HILE COMPLETING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, VIDE ORDER DATED 20 TH FEBRUARY 2014, THE ASSESSING OFFICER 2 SILVERMOON CONSTRUCTIONS PVT. LTD. MADE CERTAIN ADDITIONS / DISALLOWANCE S AGGREGATING TO ` 46,72,178. BEING AGGRIEVED OF THE ADDITIONS MADE BY THE ASSESSING OFFICER ASS ESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). AS IT APPEARS, SINCE NONE APPEARED ON BEHALF O F THE ASSESSEE ON VARIOUS DATES FIXED FOR HEARING , THE FIRST APPELLATE AUTHORITY, PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE ALLEGING NON SUBMISSION OF THE REQUIRED DETAILS. 3 . LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, THE CONCERNED CHARTERED ACCOUNTANT WHO WAS AUTHORISED TO APPEAR ON BEHALF OF THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY NEITHER APPEARED BEFORE HIM NOR APPRAISED THE ASSESSEE ABOUT THE DAY TO DAY DEVELOPMENT OF THE PROCEEDINGS. THEREFORE, THE ASSESSEE WAS TOTALLY UNAWARE OF THE REQUIREMENTS OF THE FIRST APPELLATE AUTHORITY FOR DECIDING THE APPEAL. IN SUPPORT OF THE AFORESAID CONTENTION, THE LEARNED AUTHORISED REPRESENTATIVE ALSO SUBMITTED AN AFFIDAVIT OF ONE OF THE DIRECTORS OF THE COMPANY. HE, THEREFORE, SUBMITTED, THE MATTER MAY BE RESTORED TO THE LEARNED COMMISSIONER (APPEALS ) FOR DECIDING THE ISSUE ON MERITS. 4 . LEARNED DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION IF ONE MORE OPPORTUNITY IS GIVEN TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE FIRST APPELLATE AUTHORITY. 3 SILVERMOON CONSTRUCTIONS PVT. LTD. 5 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. UNDISPUTEDLY, THOUGH, THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY WAS FIXED FOR HEARING ON A NUMBER OF OCCASIONS, THERE WAS NO COMPLIANCE FROM ASSESSEES SIDE. T HEREFORE, IN THE ABSENCE OF REQUIRED DETAILS BE ING FURNISHED BY THE ASSESSEE THE LE ARNED COMMISSIONER (APPEALS) PROCEEDED TO DISMISS THE APPEAL. HOWEVER, CONSIDERING THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE AND PERUSING THE AFFIDAVIT FILED BY ONE OF THE DIRECTORS OF ASSESSEES COMPANY WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES AN OPPORTUNITY TO EFFECTIVELY REPRESENT ITS CASE BEFORE THE FIRST APPELLATE AUTHORITY . ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THE MATTER BACK TO HIM FOR DECIDING THE ISSUES RAISED BY THE ASSE SSEE IN THE APPEAL ON MERIT S AFTER A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, WE DIRECT THE ASSESSEE TO COMPLY TO THE NOTICE OF HEARING TO BE ISSUED BY THE FIRST APPELLATE AUTHORITY AND CO OPERATE IN FINALISING THE PROCEEDINGS. WITH THE AFORESAID OBSERVATIONS, GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 6 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N 07.03.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED : 07.03.2018 4 SILVERMOON CONSTRUCTIONS PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI .