SATYA SECURITIES LTD, MUMBAI V. DCIT 3(3), MUMBAI

ITA 6738/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88610 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 05-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIJAY KOTHARI
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.6735 TO 6737/MUM/2014 ASSESSMENT YEARS: 2008-09 TO 2010-11 WATERMARK FINANCIAL CONSULTANTS LTD. 1009/10, MAKER CHAMBERS V, NARIMAN POINT, MUMBAI-400021 / VS. THE DY. COMMISSIONER OF INCOME TAX-3(3), AAYAKAR BHAVAN, M.K.ROAD, CHURCHGATE, MUMBAI-400020 ( #$%& ' /ASSESSEE) ( / REVENUE) P.A. NO. AAACW3474H ITA NO.6738 TO 6743/MUM/2014 ASSESSMENT YEARS: 2005-06 TO 2010-11 SATYA SECURITIES LTD. 1009, MAKER CHAMBERS V, NARIMAN POINT, MUMBAI-400021 / VS. THE DY. COMMISSIONER OF INCOME TAX-3(3), AAYAKAR BHAVAN, M.K.ROAD, CHURCHGATE, MUMBAI-400020 ( #$%& ' /ASSESSEE) ( / REVENUE) P.A. NO.AAECS9414M WATERMARK FINANCIAL CONSULTANTS LTD SATYA SECURITIES LTD. WATERMARK SYSTEMS INDIA PVT. LTD. 2 ITA NO.6746 AND 6747/MUM/2014 ASSESSMENT YEARS: 2009-10 AND 2008-09 WATERMARK SYSTEMS INDIA PVT. LTD. 1010, MAKER CHAMBERS V, NARIMAN POINT, MUMBAI-400021 / VS. THE DY. COMMISSIONER OF INCOME TAX-3(3), AAYAKAR BHAVAN, M.K.ROAD, CHURCHGATE, MUMBAI-400020 ( #$%& ' /ASSESSEE) ( / REVENUE) P.A. NO.AAACW 5751H #$%& ' / ASSESSEE BY): SHRI VIJAY KOTHARI / REVENUE BY SHRI KISHAN VYAS -DR ( # ) ' * / DATE OF HEARING : 18/03/2015 +, ) ' * / DATE OF PRONOUNCEMENT : 18/03/2015 ) ' * / DATE OF ORDER 18/03/2015 / O R D E R PER BENCH THIS BUNCH OF ELEVEN APPEALS, CONSISTING OF THREE CONNECTED GROUPS, AGAINST THE RESPECTIVE ORDERS DAT ED 29/09/2014 OF THE LD. FIRST APPELLATE AUTHORITY, ON IDENTICAL GROUNDS, BROADLY ON THE PRINCIPLE OF NATURAL JUSTIC E AND NOT PROVIDING REASONABLE OPPORTUNITY, OF BEING HEARD, W ITHOUT DISPOSING OFF THE APPLICATION OF THE ASSESSEE SEEKI NG ADJOURNMENT. 2. DURING HEARING OF THESE APPEALS, SHRI VIJAY KOTH ARI, LD. COUNSEL FOR THE ASSESSEE, ADVANCED HIS ARGUMENTS, W HICH ARE WATERMARK FINANCIAL CONSULTANTS LTD SATYA SECURITIES LTD. WATERMARK SYSTEMS INDIA PVT. LTD. 3 IDENTICAL TO THE GROUND RAISED BY FURTHER SUBMITTIN G THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NO POW ER TO DISMISS THE APPEALS OF THE PRESENT ASSESSEES ON TEC HNICAL GROUNDS BY PLACING RELIANCE UPON THE ORDER OF THE H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CHEMIPOL V S UNION OF INDIA IN THE APPEAL OF THE CENTRAL EXCISE (APPEAL N O.62 OF 2009) HOLDING THAT IF THE ASSESSEE DOES NOT APPEAR ON THE DATE FIXED IT HAS TO BE PRESUMED THAT THE ASSESSEE IS NO T INTERESTED IN PURSUING THE APPEAL. THE LD. COUNSEL INVITED OU R ATTENTION TO THE LATER DECISION FROM HONBLE BOMBAY HIGH COUR T ITSELF IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. (359 ITR 371) TO THE EFFECT THAT IDENTICALLY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NO POWER TO DISMISS THE APPEAL FO R NON- APPEARANCE AND HAS TO BE DISPOSED OFF ON MERIT EVEN AS PER SECTION 250(6) OF THE ACT. RELIANCE WAS ALSO PLACE D UPON THE DECISION IN CHENNIAPPA MUDALIAR (74 ITR 41) WHICH I N TURN HAS BEEN REFERRED BY THE HONBLE JURISDICTIONAL HIG H COURT. THE LD. COUNSEL FURTHER ASSERTED THAT THE ASSESSEE HAS A STRONG PRIMA-FACIE CASE ON MERIT AND SUBSTANTIAL INCONVENIENCE/LOSS WILL BE CAUSED IF THE APPEALS AR E NOT DECIDED ON MERIT. 2.1. ON THE OTHER HAND, THE LD. DR, SHRI KISHAN VYA S, STRONGLY DEFENDED THE IMPUGNED ORDERS BY SUBMITTING THAT IN SPITE OF OPPORTUNITIES PROVIDED TO THE ASSESSEE ON VARIOUS DATES, THE ASSESSEE DID NOT ARGUE ITS APPEAL, THERE FORE, THESE COULD NOT BE KEPT PENDING INDEFINITELY. IT WAS ALS O ASSERTED THAT MERE FILING OF APPEAL IS NOT SUFFICIENT RATHER EFFECTIVE WATERMARK FINANCIAL CONSULTANTS LTD SATYA SECURITIES LTD. WATERMARK SYSTEMS INDIA PVT. LTD. 4 PROSECUTION IS REQUIRED FOR WHICH THE LD. DR RELIED UPON THE DECISION FROM HONBLE APEX COURT IN B.N.BHATTACHARJ I AND ORS. (118 ITR 461) AND ANTHER DECISION FROM HONBL E BOMBAY HIGH COURT IN THE CASE OF CHEMIPOL VS UNION OF INDI A (SUPRA) AND M/S UNITED GAVLA LTD. VS DCIT (ITA NOS. 4320 TO 4324/MUM/2009). THE LD. DR FURTHER CONTENDED THAT IF SUCH A LIBERTY OF NONAPPEARANCE ON THE APPOINTED DATE IS EXTENDED TO THE ASSESSEE, THERE WILL BE NO END TO THE LITIGA TION, CAUSING UNNECESSARY LOSS TO THE REVENUE AND THE LITIGATIONS WILL PILE UP. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. UNDER THE FACTS N ARRATED HEREINABOVE AND KEEPING IN VIEW, THE PRINCIPLE OF N ATURAL JUSTICE, WE ARE OF THE CONSIDERED OPINION THAT NO P ERSON SHOULD BE CONDEMNED UNHEARD. THE HONBLE JURISDICT IONAL HIGH COURT IN A LATER DECISION DATED 23 RD OCTOBER, 2013, IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. VS ITAT & ORS. (2013) 359 ITR 371 (BOM.) LAID DOWN A RATIO THAT BR OADLY THE APPEAL SHOULD BE DECIDED ON MERIT AND SHOULD NOT BE DISMISSED FOR NON-PROSECUTION. AS PER SECTION 25 0(6) OF THE INCOME TAX ACT, 1961, THE LD. COMMISSIONER IS TO DI SPOSE OF THE APPEAL/APPEALS AND SHALL STATE THE POINTS FOR DETERMINATION AND THE REASON FOR THE DECISION. ADM ITTEDLY, THERE IS A DEFAULT ON THE PART OF THE ASSESSEE ALSO OF NONAPPEARANCE ON THE APPOINTED DATES. UNDER THE FA CTS AND WITHOUT GOING INTO MUCH DELIBERATION, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY, OF BEING HEARD, SHOULD BE PRO VIDED TO WATERMARK FINANCIAL CONSULTANTS LTD SATYA SECURITIES LTD. WATERMARK SYSTEMS INDIA PVT. LTD. 5 THE ASSESSEES, THEREFORE, WE REMAND ALL THESE APPEA LS TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) FOR FRESH ADJUDICATION, ON MERIT, IN ACCORDANCE WITH LAW. TH E ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD. THE ASSESSEE I S ALSO DIRECTED NOT TO BE SO CASUAL IN ITS APPROACH, CONSE QUENTLY, DIRECTED TO APPROACH THE OFFICE OF THE LD. FIRST AP PELLATE AUTHORITY WITHIN FIFTEEN DAYS FROM THE RECEIPT OF T HIS ORDER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MAY DE CIDE THE APPEAL EITHER ON THE DAY, THE ASSESSEE APPROACHES T HE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OR ON ANY OTHER CONVENIENT DATE. WITH THESE OBSERVATIONS, THESE AP PEALS OF THE ASSESSEES ARE DISPOSED OFF AND ALLOWED FOR STAT ISTICAL PURPOSES ONLY. FINALLY, THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 18/03/2015. SD/- (D. KARUNAKARA RAO) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( MUMBAI; . # DATED : 18/03/2015 F{X~{T? P.S/. #.. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. /012 / THE APPELLANT 2. 3412 / THE RESPONDENT. 3. ( 5' ( /0 ) / THE CIT, MUMBAI. 4. ( 5' / CIT(A)- , MUMBAI WATERMARK FINANCIAL CONSULTANTS LTD SATYA SECURITIES LTD. WATERMARK SYSTEMS INDIA PVT. LTD. 6 5. 78 3'#$ , /0* /$ , ( / DR, ITAT, MUMBAI 6. % 9 / GUARD FILE. / BY ORDER, 470' 3' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI