BRAND WAGON, MUMBAI V. DCIT CIR 15(2), MUMBAI

ITA 6640/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7568 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 15-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: HARI S RAHEJA
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B BENCH BEFORE SHRI J. SUDHAKAR REDDY (ACCOUNTANT MEMBER) A ND SHRI S.S. GODARA (JUDICIAL MEMBER) ITA NO. 6640/MUM/2010 ASSESSMENT YEAR : 2007-08 M/S. BRAND WAGON C/O. VINAY DATT, 71 OSHIWARA INDL. CENTRE, LINK ROAD, GOREGAON (W) MUMBAI 400104. PAN NO. AAGFB6579D ACIT CIT 15(2) MATRU MANDIR, TARDEO MUMBAI 400007. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI HARI S. RAHEJA RESPONDENT BY : SHRI P. C. MAURYA DATE OF HEARING : 15.03.2012 DATE OF PRONOUNCEMENT : 21.03.2012 ORDER PER S.S. GODARA, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 30.06.2010 OF THE CIT(A)-XXVI, MUMBAI. 2. THE BRIEF FACTS OF THE INSTANT CASE ARE THAT THE ASSESSEE IS INVOLVED IN THE RETAIL BUSINESS OF IMPORTED WINES. IN ITS INCOME TAX RETUR N, THE ASSESSEE DECLARED THE INCOME AS RS. NIL. THE AO ALLEGED TO HAVE ISSUED NOTICES T O THE ASSESSEE. HOWEVER, SINCE THE ASSESSEE DID NOT ASSOCIATE ITSELF IN THE ASSESSMENT PROCEEDINGS, AO RESORTED TO BEST JUDGMENT ASSESSMENT U/S. 144 OF THE INCOME TAX ACT , 1961 (HEREINAFTER TO BE REFERRED AS INCOME TAX ACT) VIDE ORDER DATED 11.12.2009. ASS ESSED TOTAL INCOME AS RS50,53,912. ITA NO.6640/MUM/2010 ASSESSMENT YEAR: 2007-08 2 2. IN APPEAL PREFERRED BY THE APPELLANT, IT TRANSPI RES THAT NOBODY APPEARED ON BEHALF OF THE ASSESSEE APPELLANT AND ASSISTED THE L D. CIT DURING THE FINAL HEARING. TAKING ADVERSE INFERENCE, THE LD.CIT(A) ALSO DECIDE D THE APPEAL IN ABSENTIA. THAT TOO ON MERITS.DISMISSED APPEAL. IT IS IN THIS VIEW OF T HE MATTER THAT THE INSTANT APPEAL HAS BEEN FILED BEFORE US. 2.1 ARGUING THE APPEAL, THE LD. AR FOR THE ASSESSE E APPELLANT SUBMITTED BEFORE US THAT THE ASSESSEE HAD DULY AUTHORIZED A CHARTERED A CCOUNTANT VIZ. SHRI PRAFUL JOSHI TO ARGUE THE APPEAL BEFORE LD. CIT. HOWEVER, FOR THE B EST REASONS KNOWN TO HIM, HE DIDAPPEAR.. AS A RESULT, THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED BY LD. CIT(A) IN ABSENTIA THAT IS WITHOUT ASSISTANCE OF THE ASSESSEE OR ANY REPRESENTATIVE. THIS ACCORDING TO THE LD. AR IS AGAINST THE BASIC PRINCIPAL OF NAT URAL JUSTICE. AS BEFORE DECIDING APPEAL, THE ASSESSEE SHOULD HAVE BEEN CALLED UPON BY THE LD . CIT(A). THEREFORE, HE PLEADED THAT THE CASE BE REMITTED BACK TO THE LOWER AUTHORI TIES TO PROPER ADJUDICATION BY SETTING ASIDE THE IMPUGNED ORDER. 2.2 ON THE OTHER HAND, THE LD. DR APPEARED FOR THE REVENUE HAS SUBMITTED THAT NEITHER BEFORE THE AO NOR BEFORE THE LD. CIT(A), TH E ASSESSEE HAD COOPERATED OR PRODUCED ANY MATERIAL. IN THE LIGHT OF THE SAME, HE PLEADED THAT THE ORDER IMPUGNED BE UPHELD AND THE INSTANT APPEAL BE REJECTED. 3. WE HAVE HEARD BOTH THE LD. REPRESENTATIVES. ALSO PERUSED THE IMPUGNED ORDER. WE FIND THAT IN THE INSTANT CASE THE AO HAD RESORTE D TO THE BEST JUDGMENT OPTION U/S. 144 OF THE ACT. IN APPEAL, THE DISALLOWANCES MADE B Y THE AO IE ESTIMATION OF PROFITS, TDS DISALLOWANCES, DISALLOWANCES REGARDING CUSTOMS AND EXCISE DUTY AS WELL AS VAT AND CST HAVE BEEN UPHELD BY THE LD.CIT(A). IN OUR OPINI ON, ONCE THE ASSESSEE HEREIN HAD ENGAGED A CHARTERED ACCOUNTANT TO REPRESENT ITS CAS E BEFORE LD. CIT, IN THE ABSENCE OF ANY REGISTERED NOTICE SENT TO THE APPELLANT BEFORE DECIDING THE CASE, THE LD. CIT(A) HAS COMMITED ILLEGALITY IN DISMISSING APPEAL ON MERITS. 3.1 HOWEVER, WE ARE ALSO CONSTRAINED TO OBSERVE THA T THE ASSESSEE HAS ALSO NOT PRODUCED RELEVANT MATERIAL BEFORE THE AO OR BEFORE LD. CIT. BUT THAT IS NOT THE END OF THE MATTER. WE ARE OF THE CONSIDERED OPINION IN THE LARGER INTEREST OF JUSTICE, THE INSTANT CASE IS LIABLE TO BE REMITTED BACK TO THE AO TO DEC IDE THE CASE AFRESH AFTER GIVING ITA NO.6640/MUM/2010 ASSESSMENT YEAR: 2007-08 3 ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE APP ELLANT.BUT TO BALANCE EQUITIES,IT IS MADE CLEAR THAT THIS TIME, THE ASSESSEE, WHOULD APP EAR BEFORE THE A.O. AND RECEIVE NOTICE OF HEARINGHIMSELF. THEREAFTER THE MATTER WOU LD BE DECIDED DENOVO AS PER LAW . 4. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR STA TISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2012. SD/- (J. SUDHAKAR REDDY ) SD/- (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 21 ST MARCH, 2012 RASIKA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A), -MUMBAI 4. COMMISSIONER OF INCOME TAX, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI