AXCEL GLOBAL SERVICES, MUMBAI V. ITO 17(1)(2), MUMBAI

ITA 6917/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9224 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 25-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 10AA; 263

Judgement Text

ITA NO 6915 TO 6917/MUM/2016 AXCEL GLOBAL SERVICES ASSESSMENT YEARS- 2009-10, 2011-12, 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 6915 TO 6917/MUM/2016 ( / ASSESSMENT YEARS: 2009-10, 2011-12 & 2012-13) AXCEL GLOBAL SERVICES PRABHA PALACE BEHIND LAXMI BHAVAN LAJPATRAI ROAD VILE PARLE(W) MUMBAI 400 056 / VS. INCOME TAX OFFICER AAYKAR BHAVAN, M.K.MARG NEW MARINE LINES MUMBAI- 400 020 ! ./ ./PAN/GIR NO. AAOFA-1550-D ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : BHARAT KAMDAR / CHINTAN KAMDAR, LD. ARS REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 15/09/2017 / DATE OF PRONOUNCEMENT : 04 /10/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THESE ARE THREE APPEALS BY ASSESSEE FOR ASSESSM ENT YEARS [AY] 2009-10, 2011-12 & 2012-13 AND ASSAIL SEPARATE ORDE RS OF LD. FIRST ITA NO 6915 TO 6917/MUM/2016 AXCEL GLOBAL SERVICES ASSESSMENT YEARS- 2009-10, 2011-12, 2012-13 2 APPELLATE AUTHORITY. SINCE, COMMON ISSUES ARE INVOL VED, WE DISPOSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE O F CONVENIENCE & BREVITY. FIRST WE TAKE UP ITA NO. 6917/MUM/2016 FOR AY 2009-10 WHERE THE ASSESSEE IS AGGRIEVED BY THE ORDER OF LD. COMMI SSIONER OF INCOME TAX (APPEALS)-28 [CIT(A)], MUMBAI DATED 04/10/2016 CONFIRMING QUANTUM ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTION 263 OF THE INCOME TAX ACT, 1961 DATED 10/02/2015. 2. THE RESPECTIVE REPRESENTATIVES, AT THE OUTSET, D REW OUR ATTENTION TO THE FACT THAT QUANTUM ASSESSMENT ORDER IS PASSED U/ S 143(3) READ WITH SECTION 263 AND THE ASSESSEE HAS SUCCESSFULLY CONTESTED THE INV OCATION OF REVISIONAL JURISDICTION U/S 263 EXERCISED BY LD. CIT BEFORE THIS TRIBUNAL VIDE ITA NO.2446/MUM/2014 ORDER DATED 28/02/2017 AN D THEREFORE, THE CONSEQUENTIAL ORDER DOES NOT SURVIVE AND HENCE, PRE SENT APPEAL BECOME INFRUCTOUS. A COPY OF THE ORDER HAS BEEN PLACED BEFORE US. AFT ER PERUSING THE SAME, WE FIND THAT SECTION 263 ORDER P ASSED BY LD. CIT HAS BEEN QUASHED BY THIS TRIBUNAL IN THE CITED ORDE R AND THEREFORE, CONSEQUENTIAL ORDER DOES NOT SURVIVE. HENCE, THIS A PPEAL BECOME INFRUCTOUS AND THEREFORE DISMISSED IN LIMINE. 3. NOW WE TAKE UP ITA NO. 6915 & 6916/MUM/2016 FOR AYS 2011-12 & 2012-13 WHERE COMMON ISSUE OF DEDUCTION U/S 10AA IS INVOLVED AND THE GROUNDS OF APPEAL ARE ALSO IDENTICAL. THE ASSES SEE HAS CONTESTED THE IMPUGNED ORDER ON LEGAL GROUNDS AS WELL AS ON M ERITS SINCE THE IMPUGNED ORDER IS AN EX-PARTE ORDER. THE ASSESSEE IS PRIMARILY AGGRIEVED BY DENIAL OF EXEMPTION U/S 10AA. 4. FACTS AS CULLED FROM AY 2011-12 ARE THAT THE ASS ESSEE BEING RESIDENT FIRM ENGAGED IN WAREHOUSING & REPAIR MAINTENANCE SERVICES ITA NO 6915 TO 6917/MUM/2016 AXCEL GLOBAL SERVICES ASSESSMENT YEARS- 2009-10, 2011-12, 2012-13 3 WAS SUBJECTED TO AN ASSESSMENT U/S 143(3) FOR THE I MPUGNED AY ON 24/03/2013 AT RS.1,42,98,260/- AS AGAINST NIL RETURN FILED BY THE ASSESSEE ON 17/06/2011. THE ASSESSEE CLAIMED DEDUCT ION U/S 10AA AGAINST CERTAIN INCOME, WHICH, IN THE OPINION, OF L D. AO WAS NOT AVAILABLE TO THE ASSESSEE AND THEREFORE, THE SAME W AS DENIED TO THE ASSESSEE. AGGRIEVED, THE ASSESSEE CONTESTED THE SAM E WITHOUT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 04/10/2016. 5. THE ASSESSEE FAILED TO APPEAR BEFORE LD. CIT(A) TO DEFEND HIS CASE DESPITE BEING PROVIDED WITH SEVERAL OPPORTUNITIES O F BEING HEARD WHICH RESULTED INTO CONFIRMATION OF QUANTUM ASSESSMENT EX-PARTE QUA THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APP EAL BEFORE US. 6. THE LD. REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NA TURAL JUSTICE. THE LD. AR CONTENDED THAT THE ASSESSEE STOOD FAIR CHANCE OF CO NTESTING THE ADDITION AND THEREFORE, IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE ISSUES BEFORE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 7. PER CONTRA , THE LD. DR OPPOSED THE SAME BY DRAWING OUR ATTENT ION TO THE FACT THAT THE ASSESSEE WAS PROVIDED WITH SUF FICIENT OPPORTUNITIES OF BEING HEARD ON VARIOUS OCCASIONS BUT EVERY TIME ADJ OURNMENT WAS SOUGHT AND NO EFFORTS WERE MADE TO REPRESENT THE CA SE BEFORE FIRST APPELLATE AUTHORITY AND THEREFORE, THE APPEAL HAS R IGHTLY BEEN DECIDED AGAINST THE ASSESSEE. ITA NO 6915 TO 6917/MUM/2016 AXCEL GLOBAL SERVICES ASSESSMENT YEARS- 2009-10, 2011-12, 2012-13 4 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE CONCUR WITH THE STAND OF LD. DR THAT THE ASSESSEE FAILED TO AVAIL THE SEVERAL OPPORTUNITIES BEING PROVIDED TO HIM BY LD. CIT(A) AND THE ASSESSEE DID NOT MAKE ANY EFF ORTS TO PURSUE THE SAME. HOWEVER, AT THE SAME TIME, IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFE CTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HI S CASE. THEREFORE, WE SEE NO HARM IN PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST HIS CLAIM BEFORE LD. CIT(A). THEREFORE, THE MATTER IS RESTORED BACK TO FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION WITH DIRECTION TO ASSESSEE TO SUBSTANTIATE HIS CLAIM FORTHWITH FAILING WHICH LD. CIT(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. 9. THE IMPUGNED ORDER FOR AY 2012-13 IS ALSO AN EX-PARTE ORDER WHERE THE QUANTUM ORDER HAS BEEN CONFIRMED PLACING RELIANCE ON THE DECISION IN AY 2009-10. THEREFORE, ON SIMILAR LINES , THE SAME IS ALSO RESTORED TO THE FILE OF LD. CIT(A) WITH SIMILAR DIR ECTIONS. 10. IN NUTSHELL, ITA NO. 6917/MUM/2016 STANDS DISMI SSED WHEREAS ITA NOS. 6915 & 6916/MUM/2016 STANDS ALLOWED FOR ST ATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04 .10.2017 SR.PS:- THIRUMALESH ITA NO 6915 TO 6917/MUM/2016 AXCEL GLOBAL SERVICES ASSESSMENT YEARS- 2009-10, 2011-12, 2012-13 5 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $'. , . , / DR, ITAT, MUMBAI 6. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI