M/s. PERFECT CIRCLE WICTOR LTD., MUMBAI V. DCIT Rg. 5(2), MUMBAI

ITA 6193/MUM/2005

• Counselvise Citation: 619319914 RSA 2005
• Duration Of Justice: 5 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 19-10-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANTOSH PARAB
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER ITA NO. 6193/MUM./2005 (ASSESSMENT YEAR : 2002-03 ) DATE OF HEARING: 5.5.2011 PERFECT CIRCLE VICTOR LIMITED 10, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004 AAACP0482F .. APPELLANT V/S ADDL. COMMISSIONER OF INCOME TAX RANGE-5(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBIA 400 020 .... RESPONDENT ITA NO. 5946/MUM./2005 (ASSESSMENT YEAR : 2002-03 ) DATE OF HEARING: 5.5.2011 DY. COMMISSIONER OF INCOME TAX RANGE-5(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBIA 400 020 .. APPELLANT V/S PERFECT CIRCLE VICTOR LIMITED 10, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004 AAACP0482F .... RESPONDENT PERFECT CIRCLE VICTOR LTD. ITA NO.6193 & 5946/MUM./2005 ITA NO.2209 & 2426/MUM./2008 2 ITA NO. 2209/MUM./2008 (ASSESSMENT YEAR : 2002-03 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-5(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBIA 400 020 .. APPELLANT V/S PERFECT CIRCLE VICTOR LIMITED 10, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004 AAACP0482F .... RESPONDENT ITA NO. 2426/MUM./2008 (ASSESSMENT YEAR : 2002-03 ) PERFECT CIRCLE VICTOR LIMITED 10, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004 AAACP0482F .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-5(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBIA 400 020 .... RESPONDENT ASSESSEE BY : MR. SANTOSH PARAB REVENUE BY : MR. R.K. GUPTA O R D E R PER J. SUDHAKAR REDDY, A.M. AT FIRST, WE TAKE UP APPEALS IN ITA NO.6193 & 5946/ MUM./2005 . THESE CROSS APPEALS ARE DIRECTED AGAINST THE IMPUGN ED ORDER DATED 26 TH JULY 2005, PASSED BY THE COMMISSIONER (APPEALS)-V, MUMBAI, FOR ASSESSMENT YEAR 2002-03. PERFECT CIRCLE VICTOR LTD. ITA NO.6193 & 5946/MUM./2005 ITA NO.2209 & 2426/MUM./2008 3 2. THE COMMISSIONER (APPEALS), IN THIS CASE, HAS PASSE D AN EX-PARTE ORDER. AT PAGE-1 OF THE ASSESSEES PAPER BOOK, CHRO NOLOGY OF EVENTS IS GIVEN. THE ASSESSEE ATTENDED BEFORE THE COMMISSIONER (APPE ALS) ON 12 TH APRIL, 26 TH APRIL AND 4 TH MAY 2005. THE COMMISSIONER (APPEALS) WAS TRANSFERR ED AND A NEW OFFICER WAS IN CHARGE. THEREAFTER, THE ASSESSEE HAD NOT APPEARED BEFORE THE COMMISSIONER (APPEALS) FROM 27 TH MAY 2005 ONLY. ON 26 TH JULY 2005, THERE WERE FLOOD IN MUMBAI. THE COMMISSIONER (APPEA LS), WITHOUT GIVING ANY FURTHER OPPORTUNITY OF HEARING TO THE ASSESSEE, PAS SED THE IMPUGNED EX- PARTE ORDER ON 25 TH JULY 2006 ITSELF. AGGRIEVED, THE ASSESSEE IS IN AP PEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE LEARNED COUNSEL, MR. SANTOSH PARA B, APPEARING ON BEHALF OF THE ASSESSEE AS WELL AS THE LEARNED DEPAR TMENTAL REPRESENTATIVE, MR. R.K. GUPTA. ON A CAREFUL CONSIDERATION OF THE F ACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE ARE OF THE OPINION THAT, THIS IS A FIT CASE TO BE SET ASIDE TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR DE NOVO ADJUDICATION ON THE GROUND OF PRINCIPLES OF NATURAL JUSTICE. CONSEQUENT LY, WE SET ASIDE THE IMPUGNED EX-PARTE ORDER PASSED BY THE COMMISSIONER (APPEALS) AND DIRECT HIM TO DECIDE THE APPEAL ON MERITS AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IN ACCORDANCE WITH LAW. NOW, WE TAKE UP APPEALS IN ITA NO.6193 & 5946/MUM./ 2005 . 4. THESE CROSS APPEALS ARE DIRECTED AGAINST THE IMPUGN ED ORDER DATED 8 TH JANUARY 2008, PASSED BY THE COMMISSIONER (APPEALS)- V, MUMBAI, FOR ASSESSMENT YEAR 2002-03, AND THE SOLE DISPUTE IS, W HETHER OR NOT THE COMMISSIONER (APPEALS) IS JUSTIFIED IN PARTLY CONFI RMING PENALTY SO IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT. 5. IN VIEW OF OUR DECISION VIDE PARA-3 ABOVE, WHERE WE HAVE RESTORED THE CROSS APPEALS BACK TO THE FILE OF THE COMMISSIONER (APPEALS) FOR DENOVO PERFECT CIRCLE VICTOR LTD. ITA NO.6193 & 5946/MUM./2005 ITA NO.2209 & 2426/MUM./2008 4 ADJUDICATION ON MERITS, AND AS THE PENALTIES ARE DE PENDENT ON THE QUANTUM APPEALS, THESE APPEALS ARE RESTORED BACK TO THE FIL E OF THE FIRST APPELLATE AUTHORITY, FOR DENOVO ADJUDICATION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IN ACCORDANCE WITH LAW. 6. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.5.2011 SD/- ASHA VIJAYRAGHAVAN JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 13.5.2011 COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, C BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI