DY.C.I.T., 3(2), MUMBAI V. M/S. PARASRAMPORIA INDUSTRIES LTD., MUMBAI

ITA 6651/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7642 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-02-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 17-11-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJIT K SINHA
• Keywords: Depreciation; Reasonable cause; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI T.R. SOOD, AM AND SHRI V. DURG RAO, JM I.T.A.NO. 6651/MUM/2008 ASSESSMENT YEAR : 2003-04 THE DY. COMMISSIONER OF INCOME- TAX-3(2), R.NO.608, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. VS. M/S. PARASRAMPORIA INDUSTRIES LTD., REGENT CHAMBERS, 208, NARIMAN POINT, MUMBAI 400 021. PAN: AAACP 6327 N (APPELLANT) (RESPONDENT) A N D I.T.A.NO. 6627/MUM/2008 ASSESSMENT YEAR : 2003-04 M/S. PARASRAMOPORIA INDUSTRIES LTD., REGENT CHAMBERS, 208, NARIMAN POINT, MUMBAI 400 021. PAN: AAACP 6327 N VS. THE DY. COMMISSIONER OF INCOME-TAX- 3(2), R.NO.608, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI AJIT K. SINHA ASSESSEE BY : MS. AASIFA KHAN O R D E R PER T.R. SOOD, AM: THESE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 19.08.2008 OF THE LEARNED COMMISSIO NER OF INCOME-TAX (APPEALS)- III, MUMBAI AND PERTAIN TO THE ASSESSMENT YEAR 2003 -04. 2. BASICALLY THE ASSESSEE DID NOT ATTEND THE ASSESS MENT PROCEEDINGS. THEREFORE, THE ASSESSMENT WAS COMPLETED ON EX PARTE BASIS UNDER SECTION 143(3) OF THE I.T.ACT BY IGNORING THE RETURNED LOSS OF RS. 6,09,23,811/- AND THE INCOME WAS ASSESSED AT NIL. 3. ON APPEAL, THE LEARNED CIT(A) CONFIRMED THE EX P ARTE ORDER. HOWEVER, HE DIRECTED THE ASSESSING OFFICER TO ALLOW ATLEAST THE DEPRECIATION. 4. IT WAS MAINLY CONTENDED BEFORE US THAT THE ASSES SEE COMPANY HAS BECOME SICK AND MOST OF THE STAFF MEMBERS HAD LEFT AT THE RELEVANT POINT OF TIME ITA NOS.6651 & 6627/M/08 DCIT VS. M/S. PARASRAMPORIA INDS. LTD.& VICE-VERSA 2 AND, THEREFORE, NO COMPLIANCE COULD BE MADE. LEARNE D COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT THAT OUT OF THREE OPPORTUNITIES ON THE FIRST OCCASION SOME DETAILS WERE FILED BECAUSE OF SHORTAGE OF STAFF. ON LATER TWO OCCASIONS, THE DETAILS COULD NOT BE PREPARED AND FILED BEFORE THE ASSESSIN G OFFICER. SHE MADE A PRAYER THAT IN THE CIRCUMSTANCES OF THE CASE ONE MORE OPPO RTUNITY MAY BE GIVEN TO THE ASSESSEE. 5. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 6. AFTER CONSIDERING THE RIVAL SUBMISSION AND THE F ACT THAT ASSESSEE-COMPANY BECOME A SICK COMPANY, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO REPRESENT ITS CASE. THEREF ORE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMIT THE PROCEEDINGS BACK T O THE FILE OF THE ASSESSING OFFICER FOR DENOVO ASSESSMENT AFTER PROVIDING ADEQU ATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. ASSESSEE IS ALSO DIRECTED TO CO-OPERATIVE IN THE ASSESSMENT PROCEEDINGS. 5. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED ON THIS 3 RD DAY OF MARCH 2010. SD. SD. (V.DURGA RAO) (T. R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 3 RD MARCH, 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-III, MUMBAI 4. THE CIT(A)-III, MUMBAI 5. THE DR C BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NOS.6651 & 6627/M/08 DCIT VS. M/S. PARASRAMPORIA INDS. LTD.& VICE-VERSA 3 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 , RECEIVED BACK. IT IS THEREFORE, PRESUMED THAT THE ASSESSEE IS NOT INT ERESTED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (2 23 ITR 480)(MP) THAT IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-BOOKS, SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT B OUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD., 38 ITD 320 (DEL.) IS A LSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRESENT APPEAL BEFORE THE TRIBUNAL, ACCORDINGLY THE APPEAL OF THE ASSESSEE IS DISMISSED AS UNADMITTED. THE ASSESSEE, IF SO ADVISED, SHALL BE ITA NOS.6651 & 6627/M/08 DCIT VS. M/S. PARASRAMPORIA INDS. LTD.& VICE-VERSA 4 FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE ASSESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON- APPEARANCE ON THE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION RECALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTA INED TO CONCEALMENT OF INCOME OF RS. 1,02,744/- AND THE PENALTY LEVIED WAS RS. 22 ,248/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY, 2008 THE APPEAL IS NOT MAINTAINABLE, TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTA INING MONETARY LIMITS FOR FILING OF APPEALS, IN THE CASE OF PENALTY ORDERS, WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY, 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY, 2009. KN COPY TO: 6. THE ASSESSEE 7. THE ITO-26(1)(2), MUMBAI. 8. THE CIT, CITY-XXVI, MUMBAI 9. THE CIT(A)-XXVIII, MUMBAI 10. THE DR, G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI ITA NOS.6651 & 6627/M/08 DCIT VS. M/S. PARASRAMPORIA INDS. LTD.& VICE-VERSA 5 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NOS.6651 & 6627/M/08 DCIT VS. M/S. PARASRAMPORIA INDS. LTD.& VICE-VERSA 6