SILVEROAK COMMERCIALS LTD, MUMBAI V. ITO WD 9(3)(2), MUMBAI

ITA 5966/MUM/2014

• Counselvise Citation: 596619914 RSA 2014
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2001-2002
• Appeal Filed On: 24-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: DR P DANIEL; M P MAKHIJA
• Section: 143(3); 147; 148; 144

Judgement Text

, , , , , ,, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , ! BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.5965 AND 5966/MUM/2014 ASSESSMENT YEAR:2001-02 M/S SILVEROAK COMMERCIALS LTD. 11, RADHAMANDIR BLDG. 213, SIR BALCHANDRA ROAD, MATUNGA EAST, MUMBAI - 400019 ' ' ' ' / VS. ITO, WARD-9(3)(2), AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( ' %&' /ASSESSEE) ( / REVENUE) P.A. NO.AAACS5536J ' %&' ( ) ( ) ( ) ( ) / // / ASSESSEE BY): DR. P. DANIEL & SHRI M.P. MAKHIJA ( ) ( ) ( ) ( ) / REVENUE BY SHRI VIJAY KUMAR BORA - DR ' ( '* / / / / DATE OF HEARING : 05/02/2015 +,- ( '* / DATE OF PRONOUNCEMENT : 05 /02/2015 . . . . / / / / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 12/08/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING THE ORDER OF THE ASSESSING OFFICER PASSE D U/S 147 READ WITH SECTION 144 OF THE INCOME TAX ACT, 1961(H EREINAFTER THE ACT) ON THE GROUNDS STATED THEREIN BROADLY THAT SUFFICIENT M/S SILVEROAK COMMERCIALS LTD. 2 OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE FOR AS SESSMENT YEAR 2001-02. IDENTICALLY THE ASSESSEE FOR THE SAM E ASSESSMENT YEAR HAS CHALLENGED IMPOSITION OF PENALTY U/S 271(1 )(C) OF THE ACT. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI P. DANIEL ALONG WITH SHRI M.P. MAKHIJA, ADVANCED AR GUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED BY FURTHER SUBMITTING THE DUE TO CHANGE OF ADDRESS, NO NOTICE WAS EVER SE RVED UPON THE ASSESSEE, CONSEQUENTLY, EX-PARTY ORDER WAS PASSED B Y THE LD. ASSESSING OFFICER AND LATER ON CONFIRMED BY CIT(A). ON THE OTHER HAND, SHRI VIJAY KUMAR BORA, LD. DR, DEFENDED THE QU ANTUM ADDITION AS WELL AS IMPOSITION OF PENALTY U/S 271(1 )(C) OF THE ACT. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.3,10,480/- IN ITS RE TURN FILED ON 31/10/2001. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS. 3,10.480/- ON 26/03/2004. THE ASSESSMENT WAS REOPENED U/S 147 RE AD WITH SECTION 148 OF THE ACT WITH THE ISSUANCE OF NOTICE. THE NOTICE SENT TO THE ASSESSEE WAS RETURNED UNSERVED, LATER O N THE SAID NOTICE U/S 148 WAS SERVED THOROUGH AFFIXTURE ON 29/ 03/2006 AT THE ADDRESS OF THE ASSESSEE. THERE WAS NO COMPLIANC E TO THIS NOTICE ALSO. WITHOUT GOING INTO MUCH DELIBERATION, THE FACT REMAINS THAT DUE TO CHANGE OF ADDRESS, THE EFFECTIV E SERVICE COULD NOT BE EFFECTED AND THEREFORE, ASSESSMENT WAS FRAME D U/S 147/144 OF THE ACT. EVEN THE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS FILED WHIC H WAS NOT ADMITTING, BEING, BARRED BY TIME/LIMITATION. IN VI EW OF THESE M/S SILVEROAK COMMERCIALS LTD. 3 FACTS, AND KEEPING IN VIEW, THE PRINCIPLE OF NATURA L JUSTICE, WE ARE OF THE CONSIDERED OPINION THAT SINCE THE NOTICE WAS NEVER SERVED UPON THE ASSESSEE, DUE TO CHANGE OF ADDRESS, THEREF ORE, NO PERSON SHOULD BE CONDEMNED UNHEARD. SINCE THE PENA LTY ORDER IS ALSO BORNE OUT OF QUANTUM ADDITION, THEREFORE, B OTH THESE APPEALS ARE SENT BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AND EXAMINE THE CLAIM OF THE ASSESSEE. NEEDLESS TO MENTION HERE THAT DUE OP PORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHE R LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, BOTH THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. ASSESSING OFFICER WITHIN ONE MONTH FROM THE RECEIPT OF THIS O RDER AND THE ASSESSING OFFICER IS AT LIBERTY TO HEAR/DECIDE THE APPEALS ON A MUTUALLY CONVENIENT/AGREED DATE. FINALLY, BOTH THESE APPEALS ARE ALLOWED FOR STATIS TICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON IN T HE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDE S AT THE CONCLUSION OF THE HEARING ON 05/02/2015. SD/ - (RAJENDRA) SD/ - (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /' DATED : 05/02/201 5 F{X~{T? P.S/. '.. . ( 1'2 32-' . ( 1'2 32-' . ( 1'2 32-' . ( 1'2 32-'/ COPY OF THE ORDER FORWARDED TO : 1. 45 / THE APPELLANT 2. 1645 / THE RESPONDENT. M/S SILVEROAK COMMERCIALS LTD. 4 3. 7 ( ) / THE CIT, MUMBAI. 4. 7 / CIT(A)- , MUMBAI 5. 29: 1'' , , / DR, ITAT, MUMBAI 6. :;% < / GUARD FILE. .' .' .' .' / BY ORDER, 62' 1' //TRUE COPY// = == =/ // /> > > > (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI