MERISANT INDIA P.LTD, MUMBAI V. DCIT RG 9(2), MUMBAI

ITA 6987/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93366 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMARDR
• Assessee Lawyers: K K LALKAKA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 37(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.6987/MUM/2012 ASSESSMENT YEAR:2009-10 MERISANT INDIA PRIVATE LTD. LEVEL 9, PLATINA BUILDING, BLOCK GPLOT C-59, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 / VS. DCIT, RANGE-9(2), AAYAKAR BAHVAN, MUMBAI-400020 ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. AACCM 3132E !' # / ASSESSEE BY SHRI K.K.LALKAKA $ / REVENUE BY SHRI VINOD KUMAR-DR % $& ' # ( / DATE OF HEARING 30/07/2015 ' # ( / DATE OF ORDER: 30/07/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 24/09/2012, OF THE LD. FIRST APPELLATE AUTHORITY, M UMBAI, PASSING AN EX-PARTY ORDER WITHOUT PROVIDING REASONA BLE ITA NO.6987/MUM/2012 , MERISANT INDIA PRIVATE LTD 2 OPPORTUNITY OF BEING HEARD AND CONSEQUENT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND FURTHER HOLDING TH AT ADDITIONAL LIABILITY ARISING ON ACCOUNT OF FLUCTUAT ION IN EXCHANGE RATE WITH RESPECT TO LOANS BORROWED FOR RE VENUE PURPOSES HELD TO BE NO DEDUCTABLE U/S 37(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING OF THE APPEAL, SHRI K.K. LALKAKA , LD. COUNSEL FOR THE ASSESSEE, ADVANCED HIS ARGUMENTS, W HICH ARE IDENTICAL TO THE GROUND RAISED BY SUBMITTING THAT E X-PARTY ORDER WAS PASSED BY THE LD. FIRST APPELLATE AUTHORI TY AND SUFFICIENT/REASONABLE OPPORTUNITY OF BEING HEARD WA S NOT PROVIDED, THUS, THERE IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE ASSESSEE HAS ALSO FILED AFFIDAVIT STA TING THE REASONS CONTAINED THEREIN. ON THE OTHER HAND, THE L D. DR, SHRI VINOD KUMAR, DEFENDED THE CONCLUSION ARRIVED A T IN THE IMPUGNED ORDER BY CONTENDING THAT OPPORTUNITY WAS G RANTED TO THE ASSESSEE BUT NOBODY ATTENDED, THEREFORE, THE RE IS NO VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS HAS BE EN CLAIMED BY THE ASSESSEE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS IN THE BUSINESS OF TRADING AND DISTRIBUTION OF CONSUMER FOOD PRODUCTS. THE ASSESS EE INCURRED LOSS ON ACCOUNT OF FOREIGN EXCHANGE FLUCTU ATION AMOUNTING TO RS.1,60,59,012/-. THE ASSESSEE WAS AS KED TO EXPLAIN THE REASONS OF SUCH EXCHANGE LOSS. THE ASSE SSEE EXPLAINED ITS POSITION, HOWEVER, THE CLAIMED RELIEF WAS DISALLOWED. THE AGGRIEVED ASSESSEE CARRIED THE MATT ER IN ITA NO.6987/MUM/2012 , MERISANT INDIA PRIVATE LTD 3 APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEALS), WHEREIN, THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE AS THE CASE WAS FIXED FOR HEARING FOR 11/07/2012. N OBODY WAS ATTENDED TO THIS DATE. THE ASSESSEE SOUGHT ADJO URNMENT, THE CASE WAS AGAIN RE-FIXED ON 09/08/2012 BUT ON TH AT DATE ALSO NOBODY ATTENDED NOR ANY APPLICATION FOR ADJOUR NMENT WAS FILED. THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) PASSED AN EX-PARTY ORDER FOLLOWING THE DECISION IN THE CASE OF B.N. BHATTARCHARYAJI & ORS. 118 ITR 461 ALONG WITH OTHER DECISIONS. WITHOUT GOING INTO MUCH DELIBERATION, W E ARE OF THE VIEW, THAT NO PERSON SHOULD BE CONDEMNED UNHEAR D. EVEN OTHERWISE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT DISPOSED OFF THE APPEAL OF THE AS SESSEE ON MERIT, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, WE DEEM IT APPROPRIATE TO REMAND THIS APPE AL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERIT AFRE SH. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THE ASSESSEE IS ALSO DIRECTED TO REMAIN VIGILANT IN FUT URE. IT IS ALSO MADE CLEAR THAT IF THE ASSESSEE ON RECEIPT OF COMMUNICATION FROM THE OFFICE OF THE LD. COMMISSION ER OF INCOME TAX (APPEALS) FOR THE DATE OF HEARING, STILL REMAINS ABSENT, THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS FREE TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON THE BAS IS OF MATERIAL AVAILABLE ON RECORD. THE APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ITA NO.6987/MUM/2012 , MERISANT INDIA PRIVATE LTD 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF HEARING ON 30/07/2015 . SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; ) DATED : 30/07/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1# ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1# / CIT(A)- , MUMBAI 5. 3$4 .# , 0 +( 5 , % & / DR, ITAT, MUMBAI 6. ! 7& / GUARD FILE. / BY ORDER, /3+# .# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI