ALBATROSS MARINE SENVICES, MUMBAI V. DCIT 15(2), MUMBAI

ITA 7045/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1508 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 02-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ABI RAMA KARTHIKEYAN
• Assessee Lawyers: RAMANAND G GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.7045/MUM/2016 ASSESSMENT YEAR : 2011-12 M/S. ALBATROSS MARINE SERVICES , 7 TH FLOOR, NEW HARLELA HOUSE, MINT ROAD, OPP: GPO, MUMBAI [PAN : AAIFA 3763 G] VS. ASST. COMMISSIONER OF INCOME TAX 17(1), MUMBAI ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI RAMANAND G. GUPTA, AR RESPONDENT BY : SHRI S. ABI RAMA KARTHIKEYAN, DR DATE OF HEARING : 20 - 11 - 201 8 DATE OF PRONOUNCEMENT : - 27 - 11 - 201 8 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER: THE FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE IS A GAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-28 , MUMBAI, VIOLATING THE PRINCIPLES OF NATURAL JUSTICE IN PASS ING EX-PARTE ORDER. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING TWO GROUNDS: 1. THE LEARNEDCIT(A) HAS GROSSLY ERRED BOTH ON FAC TS AND IN LAW, IN CONFIRMING THE ADDITION MADE BY DY. COMMISSIONER OF INCOME-TAX, WARD 15(2), MUMBAI (NOW ASSESSED WITH ACIT 17 (1) MUMBAI ) (HEREINAFTER REFERRED TO AS LEARNED AO) BEING THE AMOUNT PAID/ PAYABLE BY ITA NO.7045/MUM/2016 2 APPELLANT TO ITS VENDORS NAMELY, MARINE MECHANICAL ENGINEERS ( 15,99,350/-) AND MERCURY MARINE SUPPLIERS ( 38,64,194/-) (HEREINAFTER REFERRED TO AS VENDORS) ON THE SOLD PREMISE THAT, THESE VENDORS DID NOT RESPOND TO THE NOTICE ISSUED BY THE LEARNED AO UNDER SECTION 133(6) OF THE ACT. 2. THE LEARNED CIT(A) HAS GROSSLY ERRED ON FACTS AN D IN LAW, BY PASSING A PERVERSE ORDER IN UTMOST HASTE WITHOUT GIVING ADE QUATE OPPORTUNITY OF BEING HEARD WHICH IS AGAINST THE PRINCIPLES OF NATU RAL JUSTICE. THIS IS EVIDENT FROM THE FACT THAT, DATE OF FIRST HEARING W AS FIXED ON 30-09- 2016 AND THE APPELLATE ORDER WAS PASSED ON 03-10-20 16. THE APPELLANT SUBMITS THAT, THE LEARNED CIT(A) SHOULD H AVE GIVEN ADEQUATE OPPORTUNITY OF HEARING, AFTER TAKING INTO CONSIDERA TION THE FACT THAT, DATE OF HEARING OF APPEAL I.E., 30-09-2016 WHICH CORRESP ONDS TO LAST DATE OF FILING DECLARATION UNDER INCOME DECLARATION SCHEME , 2016 (IDS) AND THE AUTHORISED REPRESENTATIVE WOULD HAVE BEEN BUSY IN COMPANY AUDITS, TAX AUDITS AND IDS ET., 2. AT THE OUTSET, LD. COUNSEL TOOK US THROUGH THE O RDER OF THE CIT(A) I.E., EX-PARTE AND HEARING OF APPEAL WAS FIXED FIRST ON 30- 09-2016 AND APPELLATE ORDER WAS PASSED DATED 03-10- 2016. EVEN THE LD. COUNSEL POINTED OUT THAT THE ORDER OF CIT(A) IS TOTALLY NON-SPEAKING AND NOT DISCUSSED ANY FACTS. T HE DISALLOWANCE HAS BEEN CONFIRMED BY THE CIT(A) ON PR ESUMPTIONS, ASSUMPTIONS, CONJUNCTURES AND SURMISES AND WITHOUT ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE I N VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. HENCE, LD. COUNSEL REQUESTED THAT LET THE ORDER OF FIRST APPELLATE AUTHORITY I.E., TH E ORDER OF CIT(A) BE SET ASIDE AND APPEAL BE REMANDED BACK TO HIS FIL E IN FOR FRESH ADJUDICATION. ITA NO.7045/MUM/2016 3 3. WHEN THIS WAS POINTED OUT TO LD. SR. DEPARTMENTA L REPRESENTATIVE, HE FAIRLY CONCEDED THE POSITION AND COULD NOT CONTROVERT THE ABOVE SUBMISSIONS. 4. AFTER HEARING BOTH THE SIDES AND GOING THROUGH T HE FACTS, WE FIND THAT ONLY ONE DATE OF HEARING I.E., 30-09-2 016 WAS FIXED FOR HEARING AND APPELLATE ORDER WAS PASSED BY THE C IT(A) ON 03- 10-2016. WE ALSO NOTICED THAT THE ORDER OF CIT(A) IS TOTALLY NON- SPEAKING AND THAT ALSO EX-PARTE. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION, WHO AFTER ALLOWING REASONABLE OPPORTU NITY OF BEING HEARD TO ASSESSEE WILL DECIDE THIS APPEAL. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF NOVEMBER, 2018 SD/- SD/- (MANOJ KUMAR AGGARWAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 27 TH NOVEMBER, 2018 TNMM ITA NO.7045/MUM/2016 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A),MUMBAI 4. THE CIT 5. DR, A BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI