HALDYN GLASSN GUJARAT LTD, MUMBAI V. ITO 9(2)-1, MUMBAI

ITA 5841/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49665 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 11-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 03-11-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P ARTH SARATHI NAIK
• Assessee Lawyers: O P TRIPATHI
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.5841/MUM/2009 (ASSESSMENT YEAR: 2004-05) M/S. HALDYN GLASS GUJARAT LTD., 9, GAYATRI COMMERCIAL COMPLEX, BEHIND MITTAL INDUSTRIAL ESTATE NO.5, ANDHERI KURLA ROAD, MAROL NAKA, ANDHERI (E), MUMBAI -400 059 ....... APPELLANT VS ITO, -9(2)-1, ROOM NO.261, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 0020 ..... RESPONDENT PAN: AAACH 1434 J APPELLANT BY: SHRI O.P. TRIPATHI RESPONDENT BY: SHRI PARTHSARATHI NAIK DATE OF HEARING: 11.07.2011 DATE OF PRONOUNCEMENT: 29.07.2011 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-9 MUMBAI DATED 20.08.2009 FOR TH E A.Y. 2004-05. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW:- 1. THE LEARNED A.O. HAS ERRED IN DISALLOWING ` 8,16,515/- REPRESENTING COLD REPAIRS OF FURNACE EXPENSES, WHIC H ARE ITA 5841/MUM/2009 M/S. HALDYN GLASSN GUJARAT LTD. 2 OF REVENUE NATURE INCURRED WHOLLY AND EXCLUSIVELY DURING THE COURSE OF CARRYING ON BUSINESS ACTIVITIE S. 2. THE LEARNED A.O. HAS ERRED IN DISALLOWING ` 16,55,000/- BEING TRAINING EXPENSES OF ONE OF THE DIRECTORS SHREE T.N. SHETTY AS NOT BEING INCURRED F OR THE PURPOSE OF BUSINESS WITHOUT CONSIDERING WRITTEN SUBMISSION MADE IN THIS REGARD. 3. THE LEARNED CIT (A) HAS ERRED IN DECIDING THE APPEA L EX- PARTE WITHOUT APPRECIATING THE FACT. THE ASSESSEE WAS NEVER INFORMED ABOUT NEXT DATE OF HEARING AFTER SUBMISSION OF APPLICATION FOR ADJOURNMENT. 4. THE ORDER PASSED BY THE LD. CIT (A) IS UNJUST ERRON EOUS AND IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE WH ICH DESERVES TO BE QUASHED. 2. WE HAVE HEARD THE PARTIES. THE ASSESSEE IS IN T HE MANUFACTURING OF EMPTY GLASS BOTTLES. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING THE LOSS OF ` 56,97,980/- FOR THE A.Y. 2004-05. THE ASSESSEES RETURN WAS SELECTED FOR SCRUTINY AND ASS ESSMENT WAS COMPLETED U/S.143(3) OF THE ACT REDUCING THE LOSS T O ` 6,31,510/-. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT (A) AND LD. CIT (A) DECIDED THE APPEAL EX-PARTE DISMISSING THE APPEAL FILED BY THE ASSESSEE. ON THE PERUSAL OF THE ORDER OF TH E LD. CIT (A) WE FIND THAT THE ASSESSEES APPEAL WAS FIXED FOR HEARING ON 16.6.2009 AND THE ASSESSEE SOUGHT THE ADJOURNMENT. AGAIN THE APPEAL WAS FIXED FOR HEARING ON 17.8.2009 BUT IT APPEARS THAT NO ONE REM AIN PRESENT NOR REQUEST FOR ADJOURNMENT WAS MADE AND HENCE, THE LD. CIT (A), DISPOSE OFF THE ASSESSEES APPEAL EX-PARTE . THE LD. COUNSEL SUBMITS THAT NOTHING IS THERE ON RECORD TO SHOW THAT THE NOTICE WAS SERVED ON THE ITA 5841/MUM/2009 M/S. HALDYN GLASSN GUJARAT LTD. 3 ASSESSEE. HE, FURTHER, SUBMITS THAT ONE MERE OPPOR TUNITY COULD HAVE BEEN GIVEN BY THE LD. CIT (A). WE HAVE ALSO HEARD T HE LD. D.R. 3. WE FIND THAT THOUGH TWO DATES WERE MENTIONED BY THE LD. CIT (A) BUT IN OUR OPINION, THE LD. CIT (A) SHOULD HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE. MOREOVER, NOTHING IS T HERE ON RECORD TO SHOW THAT THE SECOND NOTICE WAS SERVED ON THE ASSES SEE. WE, THEREFORE, CONSIDERED IT FIT TO RESTORE THE ENTIRE MATTER TO THE FILE OF THE LD. CIT (A) TO DECIDE THE SAME ON MERIT AFTER GIVIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE ORDE R OF THE LD. CIT (A) IS SET ASIDE AND MATTER IS RESTORED BACK TO THE FIL E OF THE LD. CIT (A) IN THE LIGHT OF OUR ABOVE OBSERVATIONS. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 9TH JULY 2011. SD/- SD/- ( T.R. SOOD ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 29TH JULY 2011 COPY TO:- 1) THE APPLICANT. 2) THE RESPONDENT. 3) THE CIT (A)9, MUMBAI. 4) THE CIT-9, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 5841/MUM/2009 M/S. HALDYN GLASSN GUJARAT LTD. 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 26.07.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 26.07.2011 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/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER