THEORY M. INTERACTIVE PVT. LTD., MUMBAI V. ITO 9(3)(3), MUMBAI

ITA 617/MUM/2011

• Counselvise Citation: 61719914 RSA 2011
• Duration Of Justice: 3 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 21-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR DR
• Assessee Lawyers: NISHIT GANDHI
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNALH BENCH, MUMB AI , , ,, , !'. $ , ,, , %& % ' BEFORE SHRI JOGINDER SINGH, JM AND SHRI D. KARUNAKARA RAO, AM ITA NOS.617/MUM/2011 ASSESSMENT YEARS-2006-07 THEORY M. INTERACTIVE P. LTD., 202 STEEL HOUSE, 24 MAHAL INDUSTRIAL ESTATE, ANDHERI(E), MUMBAI-400093 ( ( ( ( / VS. ITO - 9(3)(3), AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ) %& ./ PAN :AABCT3337K ( )* / APPELLANT ) .. ( +,)* / RESPONDENT ) )* - . % / ASSESSEE BY: SHRI NISHIT GANDHI +,)* - . % / RESPONDENT BY : SHRI JEETENDRA KUMAR - DR ( - /'& / DATE OF HEARING 12/11/2014 01 - /'& / DATE OF PRONOUNCEMENT : 12/11/2014 %2 / O R D E R PER JOGINDER SINGH, JM: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 15/12/2010 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THOUGH, THE ASSESSEE HAS RAISED MANY GROUNDS BUT BE FORE US BROADLY ARGUED THAT THERE IS A VIOLATION OF RULE 46 A OF THE 2 M/S. THEORY M. INTERACTIVE P. LTD. RULES AND THUS THERE IS BREACH OF PRINCIPLE OF NATU RAL JUSTICE AS THE LD. FIRST APPELLATE AUTHORITY DECLINED THE E NTIRE EVIDENCE FILED BEFORE HIM. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE , SHRI NISHIT GANDHI ADVANCED HIS ARGUMENTS WHICH ARE IDEN TICAL TO THE GROUND RAISED BY FURTHER SUBMITTING THAT THE AU THORIZED REPRESENTATIVE OF THE ASSESSEE WAS PRE-OCCUPIED, TH EREFORE, HE DID NOT ATTEND THE PROCEEDINGS AT LATER STAGE BU T FILED WRITTEN SUBMISSIONS AND OTHER DETAILS IN SUPPORT OF THE RETURN. ON THE OTHER HAND, SHRI JEETENDRA KUMAR SU PPORTED THE ORDER OF THE AUTHORITIES BY SUBMITTING THAT IN SPITE OF PROVIDING OPPORTUNITIES THE ASSESSEE DID NOT FILE T HE NECESSARY DETAILS, THEREFORE, THERE IS NO VIOLATION OF RULE 46A OF THE RULES OR PRINCIPLE OF NATURAL JUSTICE. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS AND BR IEFS ARE THAT THE ASSESSMENT WAS FRAMED MAKING CERTAIN ADDIT IONS ETC U/S 143(3) OF THE ACT. THE ASSESSEE ATTENDED THE A SSESSMENT PROCEEDINGS ON VARIOUS DATES AS IS EVIDENCED FROM ASSESSMENT ORDER ITSELF, WHEREIN IT HAS BEEN MENTIO NED THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSION AND OTHER DETAILS IN SUPPORT OF THE RETURN. IN PARA 2 OF THE ASSESSMENT ORDER IT HAS BEEN MENTIONED THAT THE ASSESSEE COULD NOT PROD UCED THE BILLS WITH RESPECT TO THE CERTAIN ADDITIONS. W HEREAS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMP UGNED ORDER HAS MENTIONED THAT THE ASSESSMENT WAS COMPLET ED EX- PARTY AFTER REPEATED NON-COMPLIANCE TO THE STATUTOR Y NOTICES 3 M/S. THEORY M. INTERACTIVE P. LTD. FROM TIME TO TIME. NO SUCH ALLEGATION HAS BEEN MAD E IN THE ASSESSMENT ORDER THAT THE ASSESSEE DID NOT COMPLIED WITH THE NOTICES. HOWEVER, AT THE SAME TIME, THE ASSESSMENT ORDER IS ALSO NOT DETAILED/SPEAKING ONE. THE ASSESSEE FILED PAPER- BOOK CONTAINING 83 PAGES, COMPRISING CERTAIN DOCUME NTS, AS ADDITIONAL EVIDENCE. THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) SENT THE EVIDENCES/PAPERBOOK FOR COMMENTS OF THE ASSESSING OFFICER WHICH WAS OBJECTED BY HIM ON THE PLEA THAT SUCH EVIDENCE WAS NOT FILED DURING ASSESSMENT PROCE EDINGS. THE ASSESSEE FILED REJOINDER CLAIMING THAT FAIR OPP ORTUNITY TO EXPLAIN HIS CASE WAS NOT PROVIDED. THE LD. COMMISSI ONER OF INCOME TAX (APPEALS), IN VIEW OF THE OBJECTION OF T HE ASSESSING OFFICER, DID NOT ADMIT THE ADDITIONAL EVIDENCE AND AFFIRMED THE ASSESSMENT BY HOLDING THAT SUCH EVIDENCE WAS NO T FILED DURING ASSESSMENT STAGE. IN SUCH A SITUATION, WE A RE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD AS ULTIMATE AIM OF THE DEPARTMENT IS TO COLLECT DUE TA XES AND THE ASSESSEE IS EXPECTED TO DEPOSIT IN THE STATE EX CHEQUER. THE OBSERVATION BY THE LD. COMMISSIONER OF INCOME T AX (APPEALS) THAT THE ASSESSMENT WAS COMPLETED EX-PARTY AFTER REPEATED NON-COMPLIANCE TO THE STATUTORY NOTICES IS SUED FROM TIME TO TIME IS ALSO NOT SUBSTANTIATED FROM FACTS AVAILABLE ON RECORD. IN THE ABSENCE OF DUE OPPORTUNITY, THE DUE TAXABILITY/ACCESSIBILITY SOMETIMES, IS NOT POSSIBLE , THEREFORE, WE REMAND THIS APPEAL TO THE FILE OF THE LD. ASSESS ING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW FOR W HICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE 4 M/S. THEORY M. INTERACTIVE P. LTD. ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. 3. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT, IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 12/11/2014. SD/- SD/- D.KARUNAKARA RAO JOGINDER SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI; 3( DATED.-12/11/2014 F{X~{T? P.S/. ( . . %2 %2 %2 %2 - -- - +/4 +/4 +/4 +/4 5%41/ 5%41/ 5%41/ 5%41/ / COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. +,)* / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. 6 / CIT CONCERNED, MUMBAI 5. 4 7 +/( , , / DR, ITAT, MUMBAI E BENCH 6. !8 9 / GUARD FILE. %2( %2( %2( %2( / BY ORDER, ,4/ +/ //TRUE COPY// : :: : / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.