SAHYADRI RENEWABLES ENERGY PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 1(3)(2), MUMBAI

ITA 6933/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0415 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SA NO
• Assessee Lawyers: NIRAJ SHETH LD
• Keywords: Opportunity of being heard; Principle of natural justice; Application of stay; Additional evidence

Judgement Text

ITA NO.6933/MUM/2017 & SA NO.112/MUM/2018 SAHYADRI RENEWABLES ENERGY PRIVATE LIMITED ASSESSMENT YEAR-2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 6933/MUM/2017 ( ASSESSMENT YEAR: 2012-13) SAHYADRI RENEWABLE S ENERGY PRIVATE LTD 303, ELPHINSTONE HOUSE 17, MARZBAN ROAD MUMBAI-400 001 / VS. INCOME TAX OFFICER 1(3)(2) AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 ; ./ ./PAN/GIR NO. AAICS-2640-H ( ;= /APPELLANT ) : ( >?;= / RESPONDENT ) & STAY APPLICATION NO. 112/MUM/2018 [ARISING OUT OF I.T.A. NO. 6933/MUM/2017] [ /ASSESSMENT YEAR 2012-13] SAHYADRI RENEWABLES ENERGY PRIVATE LTD 303, ELPHINSTONE HOUSE 17, MARZBAN ROAD MUMBAI-400 001 / VS. INCOME TAX OFFICER 1(3)(2) AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 ; ./ ./PAN/GIR NO. AAICS-2640-H ( ;= /APPELLANT ) : ( >?;= / RESPONDENT ) ;= @ / APPELLANT BY : NIRAJ SHETH, LD. AR >?;= @ / RESPONDENT BY : M.C. OMI NINGSHEN, LD. DR 2 ITA NO.6933/MUM/2017 & SA NO.112/MUM/2018 SAHYADRI RENEWABLES ENERGY PRIVATE LIMITED ASSESSMENT YEAR-2012-13 @ CD / DATE OF HEARING : 23/02/2018 @ CD / DATE OF PRONOUNCEMENT : 23/02/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. AFORESAID STAY APPLICATION BY ASSESSEE FOR ASSES SMENT YEAR [AY] 2012-13 SEEKS STAY OF RECOVERY OF OUTSTANDING DEMAN D OF RS.1,64,55,523/-. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE [AR] , AT THE OUTSET, DREW OUT ATTENTION TO THE ORDER OF THE FIRST APPELLATE A UTHORITY AND SUBMITTED THAT THE SAME IS AN EX-PARTE ORDER SINCE THE ASSESSEE COULD NOT ATTEND THE PROCEEDINGS BEFORE LD. FIRST APPELLATE AUTHORITY IN VIEW OF THE FACT THAT THE NOTICES OF HEARING ON VARIOUS DATES WERE SENT AT TH E OLD ADDRESS OF THE ASSESSEE WHEREAS THE ASSESSEE HAD ALREADY SHIFTED I TS REGISTERED OFFICE DURING THE RELEVANT PERIOD. THE LD. AR FURTHER SUBM ITTED THAT THE ASSESSEE HAS SUFFERED HEAVY QUANTUM ADDITIONS OF RS.412.52 L ACS AS AGAINST RETURNED INCOME OF RS.18,990/- AND THEREFORE, THE P RINCIPLE OF NATURAL JUSTICE DEMAND THAT ANOTHER OPPORTUNITY OF BEING HEARD BE P ROVIDED TO THE ASSESSEE BY REMITTING THE MATTER BACK TO THE FILE O F LD. FIRST APPELLATE AUTHORITY. PER CONTRA, LD. DR SUBMITTED THAT THE NOTICES WERE SENT AS PER ADDRESS PROVIDED IN FORM 35 AND THE ONUS WAS ON ASS ESSEE TO INFORM ABOUT THE CHANGE OF ADDRESS TO THE FIRST APPELLATE AUTHORITY AND PURSUE ITS 3 ITA NO.6933/MUM/2017 & SA NO.112/MUM/2018 SAHYADRI RENEWABLES ENERGY PRIVATE LIMITED ASSESSMENT YEAR-2012-13 APPEAL. THE LD. DR ALSO OPPOSED THE STAY OF RECOVER Y OF DEMAND SINCE THE STAY APPLICATION HAS ALREADY BEEN REJECTED BY THE L OWER AUTHORITIES. 2. WE HAVE CAREFULLY PERUSED THE RIVAL CONTENTIONS AND RELEVANT MATERIAL ON RECORD INCLUDING ORIGINAL GROUNDS OF APPEAL AS W ELL AS ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE QUANTUM APP EAL BEFORE THIS TRIBUNAL. IT IS EVIDENT FROM THE RECORD THAT THE OR DER OF FIRST APPELLATE AUTHORITY IS AN EX-PARTE ORDER SINCE THE ASSESSEE FAILED TO ATTEND THE APPELLATE PROCEEDINGS ON VARIOUS DATES AS NOTED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-24, MUMBAI [CIT(A)] IN PARA 2.4 OF THE APPELLATE ORDER. FURTHER, THE APPEAL OF THE ASSESSEE WAS DISM ISSED BY LD. CIT(A) WITHOUT ADJUDICATING THE SAME ON MERITS AND WITHOUT CONSIDERING ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE HIM. THE REFORE, THE LD. CIT(A), IN OUR OPINION, WAS NOT JUSTIFIED IN DISMIS SING THE APPEAL BY PLACING RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COUR T RENDERED IN MULTIPLAN INDIA PVT. LD. 38 ITD 320. THEREFORE, ON FACTUAL MATRIX, THE BENCH FORMED AN OPINION THAT THE ASSESSEE DESERVES ANOTHER OPPORTUN ITY OF BEING HEARD AND SUBSTANTIATE HIS CASE BEFORE LD. FIRST APPELLATE AU THORITY. IN VIEW OF THE STATED FACT, THE QUANTUM APPEAL STANDS REMITTED BAC K TO THE FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION WITH A DIRECTION TO ASSESSEE TO SUBSTA NTIATE HIS CLAIM FORTHWITH FAILING WHICH LD. CIT(A) SHALL BE AT LIBERTY TO DISPOSE-OFF THE SAME ON MERITS ON THE BASIS OF MATERIAL AVAILAB LE ON RECORD. 4 ITA NO.6933/MUM/2017 & SA NO.112/MUM/2018 SAHYADRI RENEWABLES ENERGY PRIVATE LIMITED ASSESSMENT YEAR-2012-13 3. RESULTANTLY, ASSESSEES QUANTUM APPEAL ITA NO.69 33/MUM/2017 STANDS ALLOWED FOR STATISTICAL PURPOSES WHEREAS STA Y APPLICATION SA NO. 112/MUM/2018 STANDS DISMISSED, BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD FEBRUARY, 2018. SD/- SD/- ( MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) JUDICIALMEMBER ACCOUNTANT MEMBER MUMBAI; DATED :23/02/2018 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ) (/ THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. HIJ /GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI