LUMINANT INVESTMENTS LTD, MUMBAI V. ASST CIT CIR 2(2), MUMBAI

ITA 648/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9787 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-03-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 27-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIJIT PATANKAR; MRS VIDISHA KALRA
• Assessee Lawyers: R S KHANDELWAL
• Keywords: Reopening of assessment
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) I.T.A. NO. 648/MUM/2014 (ASSESSMENT YEAR 2001 - 02) I.T.A. NO. 649 /MUM/20 1 4 (ASSESSMENT YEAR 20 0 3 - 0 4 ) LUMINANT INVESTMENTS LTD. (FORMERLY KNOWN AS LUMINANT INVESTMENTS PVT. LTD.) RADHA BHAVAN,1 ST FLOOR 121, NAGINDAS MASTER ROAD MUMBAI - 400 023. PAN NO. AAACL0834A VS. DCIT CC - 40 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI R.S. KHANDELWAL & SHRI NEE LKANTH KHANDELWAL DEPARTMENT BY MRS. VIDISHA KALRA & SHRI ABHIJIT PATANKAR DATE OF HEARING 1 1.8 . 201 7 DATE OF PRONOUNCEMENT 23 . 8 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE EX - PA RTE ORDERS PASSED BY LD CIT(A) - 36, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 2001 - 02 AND 2003 - 04. 2. IN ASSESSMENT YEAR 2001 - 02, THE ASSESSEE IS CONTESTING FOLLOWING ISSUES: - (A) VALIDITY OF REOPENING OF ASSESSMENT (B) DISALLOWANCE OF INTEREST E XPENDITURE OF RS.567.53 LAKHS (C) DISALLOWANCE OF SHARE TRADING LOSS OF RS.588.93 LAKHS (D) DISALLOWANCE OF OPERATIVE EXPENSES OF RS.230.94 LAKHS (E) CHARGING OF INTEREST U/S 234B OF THE ACT 3. IN ASSESSMENT YEAR 2003 - 04, THE ASSESSEE IS CONTEST ING FOLLOWING ISSUES: - (A) DISALLOWANCE OF INTEREST EXPENDITURE OF RS.1196.63 LAKHS (B) CHARGING OF INTEREST U/S 234B OF THE ACT. LUMINANT INVESTMENTS LTD. 2 4. WE NOTICE FROM THE ORDERS PASSED BY LD CIT(A) THAT THE ASSESSEE WAS SEEKING ADJOURNMENTS REPEATEDLY AND HENCE THE FIRST APPELLATE AUTHORITY DISPOSED OF BOTH THE APPEALS FILED BEFORE HIM EX - PARTE, WITHOUT HEARING THE ASSESSEE. AT THE TIME OF HEARING BEFORE US, THE LD A.R SUBMITTED THAT THE ASSESSEE WAS CONSTRAINED TO TAKE ADJOURNMENTS, SINCE ITS MAIN DIRECTOR WAS FACI NG ACTION UNDER VARIOUS STATUTES AND FURTHER THE REQUIRED DETAILS COULD NOT BE COLLECTED. HE SUBMITTED THAT THE ISSUES URGED BEFORE THE TRIBUNAL CAN BE DISPOSED OF BY THE TRIBUNAL AS THE RELEVANT FACTS ARE AVAILABLE IN THE ASSESSMENT ORDER. ACCORDINGLY T HE LD A.R ADVANCED HIS ARGUMENTS ON VARIOUS GROUNDS URGED BEFORE US. 5. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ORDERS PASSED BY LD CIT(A) ARE EX - PARTE ORDERS AND HENCE THE PROPER COURSE OF ACTION IS TO SENT ALL THE ISSUES BACK TO THE FILE OF L D CIT(A). HE ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS MADE THE DISALLOWANCES ON PROPER REASONING AND HENCE THE LD CIT(A) WAS JUSTIFIED IN CONFIRMING ALL THE ADDITIONS IN BOTH THE YEARS. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD . WE NOTICE THAT THE LD CIT(A) HAS PASSED THE EX - PARTE ORDERS, SINCE THE ASSESSEE HAS BEEN SEEKING ADJOURNMENTS REPEATEDLY. EVEN THOUGH THE LD A.R PERSUADES US TO DECIDE THE ISSUES AT THIS STAGE, YET WE FEEL THAT THERE IS MERIT IN THE SUBMISSIONS OF LD D .R. WE NOTICE FROM THE ORDERS PASSED BY LD CIT(A) THAT THE FIRST APPELLATE AUTHORITY HAS NOT PASSED SPEAKING ORDERS ON VARIOUS ISSUES. FURTHER, HE HAS PASSED THE ORDERS WITHOUT HEARING THE ASSESSEE AND HENCE THERE WAS NO OCCASION FOR HIM TO CONSIDER THE VIEW POINT OF THE ASSESSEE. ACCORDINGLY WE ARE OF THE VIEW THAT ALL THE ISSUES SHOULD BE RESTORED TO THE FILE OF LD CIT(A) FOR ADJUDICATING THEM AFRESH. 7. ACCORDINGLY WE SET ASIDE THE ORDERS PASSED BY LD CIT(A) IN BOTH THE YEARS UNDER CONSIDERATIO N AND RESTORE ALL THE ISSUES TO HIS FILE WITH THE DIRECTION TO DISPOSE THEM AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING LUMINANT INVESTMENTS LTD. 3 HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO CO - OPERATE WITH THE LD CIT(A) FOR EXPEDITIOUS DISPOSAL OF APPEALS. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 23 . 8 .201 7. SD/ - SD/ - (SANDEEP GOSAIN ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 23 / 8 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE C OPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI