THE DCIR CIR 3(1), MUMBAI V. M/S. SHARDA SUGAR & INDUSTRIES LTD, MUMBAI

ITA 7507/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48493 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: L1
• Next Hearing Date: 22-06-2010
• Assessment Year: 1988-1989
• Appeal Filed On: 17-12-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: CHARUL TOPRANI
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI B.RAMAKOTAIA H (A.M) ITA NO.7507/MUM/07(A.Y. 1988-89) THE DCIT, CIR. 3(1), ROOM NO.607, 6 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. (APPELLANT) VS. M/S. SHARDA SUGAR & INDUSTRIES LTD. BAJAJ BHAVAN, 2 ND FLOOR, 226, NARIMAN POINT, MUMBAI 400 021. PAN:DC SR-43/26-S (RESPONDENT) C.O. NO.58/MUM/08(ARISING OUT OF ITA NO.7507/M/08), A.Y. 1988-89 M/S. SHARDA SUGAR & INDUSTRIES LTD. BAJAJ BHAVAN, 2 ND FLOOR, 226, NARIMAN POINT, MUMBAI 400 021. (CROSS OBJECTOR) VS. THE DCIT, CIR. 3(1), ROOM NO.607, 6 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. (APPELLANT IN APPEAL) REVENUE BY : SHRI JITENDRA YADAV ASSESSEE BY : MS. CHARUL TOPRANI ORDER PER N.V.VASUDEVAN, J.M ITA NO.7507/MUM/08 IS AN APPEAL BY THE REVENUE A GAINST THE ORDER DATED 12/9/2007 OF CIT(A)XXVII, MUMBAI RELATING TO ASSESSMENT YEAR 1988- 89. THE ASSESSEE HAS FILED A CROSS OBJECTION AGAIN ST THE VERY SAME ORDER OF THE CIT(A). GROUND NO.1 RAISED BY THE REVENUE RE ADS AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN NOT GIVING ANY OPPORTUNITY TO T HE APPELLANT AS PER THE DIRECTIONS OF THE HONBLE ITAT VIDE ITS ORDER D ATED 4 TH APRIL,2003. ITA NO.7507/MUM/07(A.Y. 1988-89)& CO NO.58/M/08 2 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF MANUFACTURE OF SUGAR. FOR ASSESSMENT YEAR 1988-89 AN ASSESSMENT W AS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961(THE ACT) ON 4/3/1991. THE ASSESSMENT WAS REOPENED BY ISSUING A NOTICE UNDER S ECTION 148 OF THE ACT ON 27/7/1992. AN ORDER UNDER SECTION 148 R,W,S, 1 43(3) WAS PASSED ON 29/3/1995. AGAINST THE SAID ORDER THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE CIT(A). IN ONE OF THE GROUNDS, THE ASSESSEE CH ALLENGED THE VALIDITY OF REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE AC T. THE CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE REVENUE P REFERRED AN APPEAL BEFORE THE ITAT AGAINST THE SAID ORDER OF CIT(A). THE IT AT REVERSED THE ORDER OF THE CIT(A) BY ITS ORDER DATED 4/4/2003 UPHOLDING THE V ALIDITY OF REOPENING OF ASSESSMENT. THE TRIBUNAL FURTHER DIRECTED THE CIT( A) TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 3. IN THE PROCEEDINGS BEFORE CIT(A) NO OPPORTUNITY WAS ADMITTEDLY GIVEN TO THE AO. IN THIS REGARD WE HAVE PERUSED THE RECO RDS BEFORE THE CIT(A) AND FIND THAT THE AO WAS NOT GIVEN NOTICE OF HEARING OF APPEAL BEFORE THE CIT(A). 4. THE LD. D.R SUBMITTED BEFORE US THAT SOME OF THE ISSUE DECIDED BY THE CIT(A) ARE CONTRARY TO THE FINDINGS AND OBSERVATIO N OF THE AO IN THE ORDER OF ASSESSMENT AND IN SUCH CIRCUMSTANCES IT WOULD BE AP PROPRIATE TO SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE CIT(A) TO DE CIDE THE APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A.O. 5. THE LD. COUNSEL FOR THE ASSESSEE HOWEVER, SUBMIT TED THAT SEVERAL ISSUE ARE COVERED BY THE ORDERS OF THE TRIBUNAL IN ASSESS EES OWN CASE AND SINCE THE ASSESSMENT YEAR INVOLVED IS 1988-89 THE ISSUES COULD BE DECIDED BY THE TRIBUNAL. ITA NO.7507/MUM/07(A.Y. 1988-89)& CO NO.58/M/08 3 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE AR E OF THE VIEW THAT IN THE LIGHT OF THE DIRECTIONS OF THE TRIBUNAL IN ITS ORDER DATED 4/4/2003, THE PROPER COURSE WOULD BE TO SET ASIDE THE ORDER OF CI T(A) AND DIRECT THE CIT(A) TO DECIDE ALL THE ISSUES AFRESH AFTER AFFORDING TH E AO AND THE ASSESSEE OPPORTUNITY OF BEING HEARD. WE DIRECT ACCORDINGLY. 7. IN VIEW OF THE ABOVE CONCLUSION WE ARE NOT GOI NG INTO THE MERITS OF THE OTHER GROUNDS RAISED BY THE REVENUE AS WELL AS THE GROUNDS RAISED IN THE CROSS OBJECTION. 8. IN THE RESULT, THE APPEAL BY THE REVENUE AS WELL AS THE CROSS OBJECTION BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON THE 28TH DAY OF APRIL, 2011. SD/- SD/- (B.RAMAKOTAIAH ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 28TH APRIL.2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RL BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.7507/MUM/07(A.Y. 1988-89)& CO NO.58/M/08 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 28/4/11 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28/4/11 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER