M.L. LAKHAMSI & CO, MUMBAI V. JT CIT RG 17(2), MUMBAI

ITA 7176/MUM/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5275 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2012-2013
• Appeal Filed On: 06-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SH. G. S. PANNU , AM & HONBLE SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 7176 /MUM/201 6 ( / ASSESSMENT YEAR: 2012 - 13 ) M. L. LAKHAMSI & CO. 505, CHURCHGATE CHAMBER, 5 NEW MARINE LINES, MUMBAI - 400 020 / VS. JT. CIT RG 17(2) AAYAKARBHAVAN, M.K. ROAD, MUMBAI - 400 020 ./ ./ PAN NO. AA BFM5192L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI KETANVAJANI, A R / RESPONDENTBY : SHRI SAURABH KUMAR, DR / DATE OF HEARING : 12.10 .2018 / DATE OF PRONOUNCEMENT : 12.10.2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 28, MUMBAI DATED 17.10.16 F OR AY 20 12 - 13. 2 I.T.A. NO. 7176 /MUM/201 6 M. L. LAKHAMSI& CO. 2. THE B RIEF FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF EXPORT, IMPORT AND GENERAL TRADING OF ALL PRODUCTS, CHEMICALS, MACHINERY. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 19.09.2012 DECLARING TOTAL INCOME AT RS. 22,99,420. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY OF THE ASSESSEE, ASSESSMENT ORD ER U/S. 143(3) OF THE I.T. ACT , 1961 WAS PASSED BY THE AO THEREBY MAKING ADDITION S ON ACCOUNT OF VALUATION OF CLOSING STOCK AND FOR EIGN EXCHANGE LOSS. AGGRIE VED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES , DISMISSED THE APPEAL OF THE ASSESSEE . NOW BEFORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BY RAISING THE ABOVE GROUNDS. 3. AT THE VERY OUTSET, LD. AR SUBMITTED THAT LD. CIT(A) BEFORE CONFIRMING THE ADDITIONS MADE BY THE AO HAD NOT PROVIDED OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE IN THE CORRECT PERSPECTI VE AND HENCE CHALLENGED THE UPHOLDING THE ADDITIONS. LD. AR ALSO RELIED UPO N CERTAIN DOCUMENTS WHICH ARE 3 I.T.A. NO. 7176 /MUM/201 6 M. L. LAKHAMSI& CO. ANNEXED IN PAPER BOOK AND SUBMITTED THAT DOCUMENTS AT SERIAL NO. 16 TO 18 WERE NOT FILED BEFORE LD. CIT(A). IN ADDITION TO THAT, LD. AR ALSO SUBMITTED THAT NOBODY COULD APPEAR BEFORE LD. CIT(A) AT THE TIME OF HEARING AND THEREFORE IN ABSENCE OF THE ASSESSEE, LD. CIT (A) HAS PASSED AN EX - PARTY ORDER. 4 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE A SSESSEE HAD INTENTIONALLY NOT APPEARED BEFORE LD. CIT(A) AND THE ORDERS PASSED BY LD. CIT(A) NEEDS NO INTERFERENCE. 5 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE R EVENUE AUTHORITIES. FROM THE RECORDS WE FOUND THAT THE ASSESSEE COULD NOT PLACED ON RECORD CERTAIN DOCUMENTS AS HE WAS PROCEEDED EX - PARTE BEFORE THE LD. CIT(A) AND NOW THE ASSESSEE IS RELYING UPON THOSE DOCUMENTS WHICH ARE ANNEXED IN PAPER BOOK. ALTHOUGH I T WAS BOUNDARY DUTY OF THE ASSESSEE OR HIS REPRESENTATIVE TO APPEAR BEFORE THE AUTHORITIES ON EACH AND EVERY DATE OF HEARING AND TO ASSIST AND COOPERATE THE AUTHORITIES FOR THE EARLIER DISPOSAL OF THE APPEAL, SINCE THE ASSESSEE WAS EX - PARTE 4 I.T.A. NO. 7176 /MUM/201 6 M. L. LAKHAMSI& CO. BEFORE THE LD. CIT(A) THEREFORE HE COULD NOT FILE AND RELIED UPON THE DOCUMENTS AND CONTEST THE APPEAL ON MERITS. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND KEEPING IN VIEW THE SUBSTANTIAL CAUSE OF JUSTICE , WE ARE OF THE CONSIDERE D VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY , WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT(A) THEN IN THAT EVENTUALITY , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY . THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION, WE SET ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND REMIT THE MATTER BACK TO LD. CIT(A) WITH A DIRECTION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND THEREAFTER PASS AFRE SH ORDER ON ALL THE GROUNDS RAISED BY THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE LD. CIT(A) WITHIN 60 DAYS FROM TODAY AND COOPERATE IN EARLY DISPOSAL OF THE APPEAL 5 I.T.A. NO. 7176 /MUM/201 6 M. L. LAKHAMSI& CO. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. 6 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH OCT , 2018 SD/ - SD/ - ( G. S. PANNU ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 12 . 10 .201 8 SR.PS . DHANANJAY 6 I.T.A. NO. 7176 /MUM/201 6 M. L. LAKHAMSI& CO. / 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 F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI