FAIRDEAL EXPORTS P. LTD, MUMBAI V. ACIT RG 9(1), MUMBAI

ITA 5947/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8521 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 15-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 29-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: NILESH SALVI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI D. KARUNAKARA RAO (A.M.) ITA NO. 5947/MUM /2010 ASSESSMENT YEAR : 2005-06 M/S FAIRDEAL EXPORTS PVT. LTD., 7, KASHI KUNJ, WATERFIELD ROAD, BANDRA (EAST), MUMBAI 400 050. PAN AAACF4007D VS. THE ASSTT. COMMISSIONER OF INCOME TAX, RANGE 9(1), ROOM NO. 224, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI NILESH SALVI DEPARTMENT BY : SHRI OM PRAKASH MEENA DATE OF HEARING 15-10-2012 DATE OF PRONOUNCEMENT 19-10-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DTD. 13-05-2010 PASSED BY THE LD. CIT(A) 19, MUMB AI FOR THE A.Y. 2005-06. 2. THE ASSESSEE VIDE APPLICATION DTD. 15-10-2012 SE EKS ADJOURNMENT ON THE GROUND THAT THE ASSESSEE NEEDS SHORT PERIOD TO TRACE OUT THE DOCUMENTS PERTAINING TO THE SAID CASE. KEEPING IN V IEW THAT TWO ADJOURNMENTS HAVE ALREADY BEEN GRANTED TO THE ASSES SEE, THE BENCH REJECTED THE ADJOURNMENT PETITION FILED BY THE ASSE SSEE AND IT WAS ITA NO. 5947/MUM/2010 2 DECIDED TO DISPOSE OF THE APPEAL EX PARTE QUA THE A SSESSEE ON MERITS AFTER CONSIDERING THE SUBMISSION OF THE LD. D.R. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF DISTRIBUTION OF FILMS. THE RETURN WAS FILED DECLARING LOSS OF RS. 20,341,685/- ALONG WITH ANNUA L REPORT, AUDIT REPORT UNDER THE COMPANIES ACT AND COPIES OF THE ACCOUNTS. HOWEVER, THE ASSESSMENT WAS COMPLETED AFTER MAKING CERTAIN DISAL LOWANCES/ADDITION, AT A LOSS OF RS. 10,12,458/- VIDE ORDER DTD. 3-10-2 007 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT). ON APPEAL, T HE LD. CIT(A) IN THE ABSENCE OF ANY COMPLIANCE BY THE ASSESSEE, HOWEVER, CONFIRMED THE ADDITION/DISALLOWANCE MADE BY THE A.O. AND DISMISSE D THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING THE VALIDITY OF THE EX PARTE ORDER PASSED BY THE LD. CIT(A) AND SUSTENANCE OF ADDITION/DISALLOWA NCE MADE BY THE A.O. 5. AT THE TIME OF HEARING THE LD. D.R. WHILE RELYIN G ON THE ORDER OF THE A.O. AND LD. CIT(A) SUBMITS THAT HE HAS NO OBJECTIO N IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE S AME AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE LD. CIT(A) HAS ITA NO. 5947/MUM/2010 3 PROVIDED MORE THAN FIVE OPPORTUNITIES OF BEING HEAR D TO THE ASSESSEE. HOWEVER, THE ASSESSEE HAS NEITHER APPEARED BEFORE T HE LD. CIT(A) NOR FILED ANY DETAILS. THE LD. CIT(A) IN THE ABSENCE OF THER EOF, CONFIRMED THE ADDITION MADE BY THE A.O. AFTER CONSIDERING THE TOT ALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW THAT THE ASSESSEE HAS FILED CERTAIN DETAILS ALONG WITH RETURN OF INCOME WHICH W AS NOT CONSIDERED BY THE LD. CIT(A) WHILE DECIDING THE ISSUE, WE, IN THE INTEREST OF JUSTICE, CONSIDER IT FAIR AND REASONABLE THAT ONE MORE OPPOR TUNITY BE PROVIDED TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE LD. C IT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE TO DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWE D FOR STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 19-10-2012 SD/- (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED : 19-10-2012 RK ITA NO. 5947/MUM/2010 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 19, MUMBA I 4. COMMISSIONER OF INCOME TAX 9 MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI