RESHAMWALA P.LTD, MUMBAI V. ACIT (OSD) 2(3), MUMBAI

ITA 6097/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55632 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P C BAID
• Keywords: Opportunity of being heard

Judgement Text

1 M/S RESHAMWALA P LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI T R SOOD, AM & SHRI VIJAY PAL RAO, JM ITA NO.6097/MUM/2010 (ASST YEAR 2007-08 ) M/S RESHAMWALA P LTD 7/A PIL COURT SHERBANOO CHS LTD, 111 M K MRG MUMBAI 20 VS THE ASST COMMR OF INCOME TAX (OSD) 2(3), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAACR1849P ASSESSEE BY SH P C BAID REVENUE BY SHRI C G K NAILK DT.OF HEARING 25.10.2011 DT OF PRONOUNCEMENT 25.10.2011 PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.6.2010 OF THE CIT(A) FOR THE AY 2007-08. 2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE G ROUND IN THIS APPEAL: THE LD CIT(A) ERRED IN DISMISSING THE APPELLANTS APPEAL ON THE GROUND THAT NONE HAS ATTENDED THE APPELLATE PROCEEDINGS FROM THE APPELLANT SIDE IN SPITE OF THE THREE NOTICES ISSUED FIXING THE CASE FO R HEARING WHERE AS NONE OF THE ALLEGED THREE NOTICES WERE RECEIVED BY OR SERVED ON THE APPELLANT BECAUSE THE SAID NOTICES WERE NOT SENT TO THE APPELL ANT AT THE MAILING ADDRESS GIVEN IN THE APPEAL FORM. 3 THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) A GAINST THE ASSESSMENT ORDER PASSED U/S 143(3). SINCE NOBODY APPEARED ON BEHALF OF THE ASSESSEE DESPITE REPEATED NOTICED ISSUED, THE CIT(A) DISMISSED THE A PPEAL OF THE ASSESSEE FOR WANT OF APPEARANCE AND PROSECUTION VIDE THE IMPUGNED ORDER. 2 M/S RESHAMWALA P LTD 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD AR OF THE A SSESSEE HAS SUBMITTED THAT IN THE FORM 35, FILED BEFORE THE CIT(A), THE ASSESSEE HAS PROVIDED THE REGISTERED OFFICE ADDRESS AS WELL AS THE ADDRESS TO WHICH THE NOTICE TO BE SENT TO THE ASSESSEE. SINCE THE ASSESSEE WAS UNDER THE PROCESS OF SHIRTING ITS REGISTERED OFFICE, THE ASSESSEE HAS GIVEN IN THE FORM 35 A DIFFERENT ADDRESS FOR SENDIN G THE NOTICE. THE CIT(A) ISSUED ALL THE NOTICES OF HEARING ONLY TO THE REGISTERED OFFIC E ADDRESS WHICH THE ASSESSEE DID NOT RECEIVE. ACCORDINGLY, THE ASSESSEE DID NOT ATT END THE HEARING BEFORE THE CIT(A). 4.1 ON THE OTHER HAND, THE LD DR HAS SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT DESPITE VARIOUS NOTICES ISSUED, NOBODY APPEARED BEFORE THE CIT(A); THEREFORE, THE APPEAL WAS RIGHTLY DISMISSE D BY THE CIT(A) FOR NON PROSECUTION. 5 HAVING CONSIDERED THE RIVAL CONTENTION AND CONSID ERING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT IN FORM 35, THE ASSESSEE HA S GIVEN TWO DIFFERENT ADDRESSES AND THE ADDRESS GIVEN FOR NOTICE TO BE ISSUED TO TH E ASSESSEE IS DIFFERENT FROM THE REGISTERED OFFICE OF THE ASSESSEE COMPANY. IT APPE ARS THAT THE CIT(A) ISSUED NOTICE AT THE REGISTERED OFFICE ADDRESS OF THE ASSESSEE; T HEREFORE, THE ASSESSEE COULD NOT RECEIVE THE SAME. 6 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE WAS DENIED PRO PER OPPORTUNITY OF HEARING. SINCE THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR WANT OF PROSECUTION; THEREFORE, WE SET ASIDE THE ORDER OF THE CIT(A) AND REMAND THE MATTER BACK TO HIS FILE FOR DECIDING THE ISSUE ON MERIT AFTER GIVEN A REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE THE FRESH ADDRESS BEFORE THE CIT(A). 3 M/S RESHAMWALA P LTD 7 IN THE RESULT, THE APPEAL FILE BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING I.E. ON 25 TH OCT 2011 SD/ SD/- ( T R SOOD ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 25 TH ,OCT2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI