MAHARAHSTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT, MUMBAI V. ITO WARD 17 (2)(3), MUMBAI

ITA 5979/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0339 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JOTHI LAKSHMI NAYAK SR
• Assessee Lawyers: VISHWAS MEHENDALEAR
• Keywords: Set aside
• Section: 143(3); 80(P)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBE R & SHRI G. MANJUNATHA, ACCOUNTANT MEMBE R ITA NO.5979/MUM/2018 ( ASSESSMENT YEAR :2013-14 ) MAHARASHTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT 3 RD FLOOR, NKM INTERNATIONAL HOUSE, B.CHINAI MARG, CHURCHGATE MUMBAI-400 020 VS. ITO,WARD-17(2)(3) AAYKAR BHAWAN, M.K.ROAD MUMBAI-400 020 PAN/GIR NO. AA ATM 4 973E APPELLANT ) .. RESPONDENT ) REVENUE BY SMT. JOTHILAKSHMI NAYAK, SR.AR ( DR ) ASSESSEE BY SHRI. VISHWAS MEHENDALE,AR DATE OF HEARING 0 4 /12 /2019 DATE OF PRONOUNCEME NT 04 /12 /201 9 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)28, MUMBAI, DATED 19/07/2018 AND IT PERTAINS TO ASSESSMENT YEAR 2013-14 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LD. COMMISSIONER OF INCOME TAX (APPEAL) & IN COME TAX OFFICER ERRED IN RESTRICTING THE DEDUCTION ON INTER EST AND DIVIDEND RECEIVED FROM CO-OPERATIVE SOCIETY U/S 80(P) (D) OF INCOME T AX ACT ONLY TO THE EXTENT OF INCOME FROM PROFIT AND GAINS FROM BUSINE SS OR PROFESSION TO RS.3,78,41,810/- 2. THE APPELLANT PRAYS TO ADD, AMEND, ALTER, MODIFY , AND DELETE OR WITHDRAW THE GROUNDS OF APPEAL AT THE TIME OF HEARI NG. ITA NO.5979/MUM/2018 MAHARASHTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESEE IS A COOPERATIVE SOCIETY ESTABLISHED TO IMPLEMENT THE OP ERATION FLOOD PROGRAMME IN THE STATE OF MAHARASHTRA. THE MAIN OBJ ECTIVE OF MRSDMM IS PROCURING MILK FROM THE MEMBER MILK UNION S AT REMUNERATIVE RATES AND DISTRIBUTES THE SAME TO THE CONSUMERS AT REASONABLE RATES. THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR AY 2013-14 ON 30/09/2013 DECLARING TOTAL INCOME AT RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT HAS B EEN COMPLETED U/S 143(3) OF THE I.T.ACT, 1961 ON 28/03/2016, DETE RMINING THE TOTAL INCOME AT RS. 3,78,41,810/- , BY DENYING THE BENEF IT OF DEDUCTION U/S 80(P)(2)(D) OF THE I.T.ACT, 1961, IN RESPECT OF MISCELLANEOUS INCOME AMOUNTING TO RS. 3,78,41,830/-. THE ASSESSEE CARRIED THE MATTER APPEAL BEFORE THE LD.CIT(A), BUT COULD NOT A PPEAR BEFORE THE LD.CIT(A), DESPITE VARIOUS NOTICES ISSUED, FIXING THE CASE FOR HEARING. THE LD.CIT(A) FOR THE DETAILED REASONS REC ORDED IN HIS APPELLATE ORDER DATED 19/07/2018 DISMISSED APPEAL F ILED BY THE ASSESSEE. AGGRIEVED BY THE LD.CIT(A) ORDER, THE ASS ESSEE IS IN APPEAL BEFORE US. 4. THE LD. AR FOR THE ASSESEE, AT THE TIME OF HEARI NG SUBMITTED THAT THE ASSESEE COULD NOT APPEAR BEFORE THE LD.CIT (A) FOR HEARING. THEREFORE, THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESSEE EX-PARTE WITHOUT GIVING REASONABLE OPPORTUNITY OF B EING HEARD TO EXPLAIN THE CASE. THE LD. AR FURTHER SUBMITTED THAT THE REASONS FOR NOT APPEARING BEFORE THE LD.CIT(A) ARE NOT INTENTI ONAL, BECAUSE THE GENERAL MANAGER, WHO SUPPOSE TO ATTEND THE HEARING WAS NOT ATTENDING THE OFFICE DUE TO SUDDEN ILLNESS DURING THE PERIOD. DUE TO SUDDEN ILLNESS OF GENERAL MANAGE, THE ASSESSEE COUL D NOT ATTEND THE HEARING AS ON THE DATE FIXED FOR HEARING THE CA SE. THEREFORE, THE ITA NO.5979/MUM/2018 MAHARASHTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT 3 ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A) TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE. 5. THE LD. DR, ON THE OTHER HAND, FAIRLY ACCEPTED T HAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIALS AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. THE LD.CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX- PARTE FOR NON APPEARANCE ON THE DATE FIXED FOR HEAR ING. THE ASSESSEE HAS EXPLAINED THE REASONS FOR NON ATTENDAN CE BEFORE THE LD.CIT(A), AS PER WHICH THE GENERAL MANAGER, WHO SU PPOSED TO APPEAR BEFORE THE LD.CIT(A) WAS FELL ILL DURING TH E PERIOD, BECAUSE OF WHICH THE ASSESSEE COULD NOT APPOINT COUNSELS F ROM THEIR PANEL OF EXPERTS FOR MAKING REPRESENTATION BEFORE THE AUT HORITIES. WE FIND THAT THE REASONS GIVEN BY THE ASSESSEE FOR NOT APPE ARING BEFORE THE LD.CIT(A) SEEMS TO BE BONAFIDE AND HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE NEEDS TO BE SET ASI DE TO THE FILE OF THE LD. CIT(A) TO GIVE ANOTHER OPPORTUNITY OF HEARI NG TO THE ASSESSEE TO EXPLAIN ITS CASE. HENCE, WE SET ASIDE THE APPEAL TO THE FILE OF THE LD.CIT(A) TO CONSIDER THE ISSUE AFRESH IN ACCORDANC E WITH LAW. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04/12/ 2019 ITA NO.5979/MUM/2018 MAHARASHTRA RAJYA SAHAKARI DUDH MAHASANGH MARYADIT 4 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 04/12/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//