ELDER HEALTH CARE LTD, MUMBAI V. ACIT CEN CIR 34, MUMBAI

ITA 7682/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9234 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR LD
• Assessee Lawyers: SHAILESH PARMARLD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

ITA NO 7682/MUM/2016 ELDER HEALTH CARE LIMITED ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 7682/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) ELDER HEALTH CARE LIMITED ELDER HOUSE, C-9 DALIA INDUSTRIAL ESTATE OFF NEW LINK ROAD, ANDHERI(W) MUMBAI 400 053 / VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE(34) MUMBAI ! ./ ./PAN/GIR NO. AAACE-0869-Q ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : SHAILESH PARMAR, LD. AR REVENUE BY : SUMAN KUMAR, LD. DR / DATE OF HEARING : 15/09/2017 / DATE OF PRONOUNCEMENT : 04 /10/2017 ITA NO 7682/MUM/2016 ELDER HEALTH CARE LIMITED ASSESSMENT YEAR 2012-13 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 ASSAILS THE EX-PARTE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-54 [CIT(A)], MUMBAI DATED 29/09/2016 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSEE, IN ITS GROUNDS OF APPEAL, HAS CONTESTED THE IMPUGNED ORDER ON LEGAL GROUNDS AS WELL AS ON M ERITS SINCE THE IMPUGNED ORDER IS AN EX-PARTE ORDER. 2. BRIEFLY STATED, THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE ENGAGED IN TRADING & MANUFACTURING OF PHARMACEUTICALS WAS ASSESSED U/S 143(3) FOR IMPUGNED AY ON 25/03/2014 AT RS.4,94 ,99,446/- AS AGAINST NIL RETURN FILED BY THE ASSESSEE ON 29/09/2012. CONSEQU ENT TO SEARCH OPERATIONS ON 06/03/2012 ON ELDER GROUP OF COMPANIES, CERTAIN DOCUMENTS PERTAINING TO ASSESSEE WERE FOUND AND THE REFORE, THE ASSESSMENT OF IMPUGNED AY WAS SUBJECTED TO SCRUTINY ASSESSMENT U/S 143(3). THE ASSESSEE, INTER-ALIA, SUFFERED ADDITIONS OF RS.8 CRORES ON ACCOUNT OF COMMISSION AND INTEREST AND DISALLOWANCE OF RS.65,19,361/- U/S 14A. BOTH THESE ADDITIONS ARE THE SUBJECT MATTE R OF THIS APPEAL. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME BEFOR E LD. CIT(A) VIDE IMPUGNED ORDER DATED 29/09/2016. THE ASSESSEE FAILED TO APPEAR BEFORE LD. CIT(A) TO DEFEND HIS CASE DESPITE BEING PROVIDED WITH SEVERAL OPPORTUNITIES OF BEING HEARD. THE SAME RESULTED INT O CONFIRMATION OF ADDITIONS EX-PARTE QUA THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. ITA NO 7682/MUM/2016 ELDER HEALTH CARE LIMITED ASSESSMENT YEAR 2012-13 3 4. THE LD. REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NA TURAL JUSTICE. THE LD. AR CONTENDED THAT THE ASSESSEE STOOD FAIR CHANCE OF CO NTESTING THE ADDITION AND THEREFORE, IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE ISSUES BEFORE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 5. PER CONTRA , THE LD. DR OPPOSED THE SAME BY DRAWING OUR ATTENT ION TO THE FACT THAT THE ASSESSEE WAS PROVIDED WITH SUF FICIENT OPPORTUNITIES OF BEING HEARD ON VARIOUS OCCASIONS BUT EVERY TIME ADJ OURNMENT WAS SOUGHT AND NO EFFORTS WERE MADE TO REPRESENT THE CA SE BEFORE FIRST APPELLATE AUTHORITY AND THEREFORE, THE APPEAL HAS R IGHTLY BEEN DECIDED AGAINST THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE CONCUR WITH THE STAND OF LD. DR THAT THE ASSESSEE FAILED TO AVAIL THE SEVERAL OPPORTUNITIES BEING PROVIDED TO HIM BY LD. CIT(A) AND THE ASSESSEE DID NOT MAKE ANY EFF ORTS TO PURSUE THE SAME. HOWEVER, AT THE SAME TIME, IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE EFFE CTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HI S CASE. THEREFORE, WE SEE NO HARM IN PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE TO CONTEST HIS CLAIM BEFORE LD. CIT(A). THEREFORE, THE MATTER IS RESTORED BACK TO FILE OF LD. CIT(A) FOR DE-NOVO ADJUDICATION WITH DIRECTION TO ASSESSEE TO ITA NO 7682/MUM/2016 ELDER HEALTH CARE LIMITED ASSESSMENT YEAR 2012-13 4 SUBSTANTIATE HIS CLAIM FORTHWITH FAILING WHICH LD. CIT(A) SHALL BE AT LIBERTY TO DECIDE THE MATTER ON THE BASIS OF MATERIAL AVAIL ABLE ON RECORD. 7. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES ON LEGAL GROUNDS. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04. 10.2017 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. / / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI