GANJAM TRADING CO.P.LTD, MUMBAI V. ASST CIT 6(3), MUMBAI

ITA 7762/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3032 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 30-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS VIDISHA KALRA
• Assessee Lawyers: POOJA KAKU
• Keywords: Condonation of delay
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.6333/M/2014 ASSESSMENT YEAR: 2009-10 ITA NO.7762/M/2014 ASSESSMENT YEAR: 2009-10 M/S. GANJAM TRADING CO. PVT. LTD., TIMES TOWERS, TOP FLOOR, KAMLA MILLS COMPOUND, SB RD., LOWER PAREL (W), MUMBAI 400 013 PAN: AAACG3975H VS. ACIT-CIRCLE 6(3), R.NO.501, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : MISS POOJA KAKU, A.R. REVENUE BY : MRS. VIDISHA KALRA, D.R. DATE OF HEARING : 21.09.2016 DATE OF PRONOUNCEMENT : 21.09.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED BOTH THE APPEALS HAVE BEEN P REFERRED BY THE ASSESSEE. FIRST WE TAKE UP THE ASSESSEES APPEAL B EARING ITA NO.6333/M/2014 AGITATING THE EXERCISE OF REVISIONAL JURISDICTION B Y THE COMMISSIONER OF INCOME TAX [HEREINAFTER REFERRED TO AS THE CIT] UNDER SECT ION 263 OF THE ACT. ITA NO.6333/M/2014 2. THIS APPEAL OF THE ASSESSEE IS BARRED BY LIMITAT ION OF 168 DAYS. AN AFFIDAVIT OF SHRI RAJENDER PRASAD TYAGI, DIRECTOR O F THE ASSESSMENT COMPANY HAS BEEN FILED WHEREIN THE REASONS FOR DELAY HAS BE EN MENTIONED AND CONDONATION OF DELAY IN FILING THE APPEAL HAS BEEN PRAYED FOR. IT HAS BEEN STATED IN THE SAID AFFIDAVIT THAT THE ASSESSEE DID NOT HAVE ANY PROFESSIONAL ITA NO.6333/M/2014 ITA NO.7762/M/2014 M/S. GANJAM TRADING CO. PVT. LTD. 2 EMPLOYEE AND THERE WERE NEITHER EXECUTIVE OR WHOLE TIME DIRECTOR OR MANAGING DIRECTOR OF THE COMPANY AND THE WORKING DIRECTORS W ERE NOT AWARE OF THE LEGAL IMPLICATIONS. IT WAS ONLY DURING THE HALF YEARLY R EVIEW BY THE TAX HEAD OF THE GROUP COMPANY THAT NON FILING OF THE APPEAL BEFORE THE ITAT CAME TO NOTICE. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION TO T HE IMPUGNED ORDER TO STATE THAT NO PROPER OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE WHILE PASSING THE IMPUGNED ORDER BY THE LD. CIT UNDER SECTION 263 OF THE ACT AND THAT THE SAME IS AN EX-PARTE ORDER. SHE HAS ALSO RELIED UPO N THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUI SITION VS. M/S. KATEJI & OTHERS 1987 AIR 1353 AND HAS THEREFORE CONTENDED T HAT IF THE DELAY IS NOT CONDONED IN THIS CASE, IT WOULD AMOUNT TO LEGALIZIN G THE INJUSTICE CARRIED OUT TO THE ASSESSEE ON TECHNICAL GROUNDS WHEREAS AS PER TH E LAW LAID DOWN BY THE HONBLE SUPREME COURT, THE INTEREST OF JUSTICE WILL BE SERVED IN REMOVING THE INJUSTICE CARRIED OUT TO THE ASSESSEE. CONSIDERING THE PECULIAR FACTS OF THE CASE THAT THERE WERE NO EMPLOYEES OF THE ASSESSEE COMPAN Y AND THERE WAS NO FULL TIME DIRECTOR OR MANAGING DIRECTOR AND ALSO CONSIDE RING THE CONTENTS OF THE IMPUGNED ORDER, IN OUR VIEW, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, INTEREST OF JUSTICE WILL BE WELL SERVED, IF T HE DELAY IN FILING OF THESE APPEALS IS CONDONED. WE ORDER ACCORDINGLY. NOW WE PROCEED TO COME TO THE MERITS OF THE CASE. 3. THE LD. CIT, VIDE ORDER DATED 26.02.14, HAS SET ASIDE THE ORIGINAL ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT DATED 30.12.2011 AND HAS RESTORED THE MATTER TO THE AO (HEREINAFTER REFE RRED TO AS THE AO) FOR DENOVO ASSESSMENT. AT THE OUTSET, THE LD. A.R. HAS BROUGHT OUR ATTENTION TO THE IMPUGNED ORDER AND HAS CONTENDED THAT NO PROPER OPP ORTUNITY OF HEARING HAS BEEN GIVEN BY THE LD. CIT WHILE PASSING THE IMPUGNE D ORDER. SHE HAS SPECIFICALLY INVITED OUR ATTENTION TO PARA 3 OF THE IMPUGNED ORDER TO SHOW THAT ONLY ONE OPPORTUNITY OF HEARING I.E. ON 25.02.14 WA S GIVEN TO THE ASSESSEE TO ITA NO.6333/M/2014 ITA NO.7762/M/2014 M/S. GANJAM TRADING CO. PVT. LTD. 3 ADVANCE THE SUBMISSIONS AGAINST THE INVOCATION OF J URISDICTION UNDER SECTION 263 OF THE ACT. 4. WE HAVE GONE THROUGH THE IMPUGNED ORDER. WE FIN D THAT THE LD. CIT HAS SPECIFICALLY WRITTEN THAT ASSESSEE WAS GIVEN HE ARING ON 25.02.14 AT 11:30 A.M., HOWEVER, NO ONE ATTENDED THE HEARING ON THE A PPOINTED DATE OR SUBMITTED ANY WRITTEN SUBMISSIONS. IT HAS BEEN FURTHER MENTI ONED THAT AS THE MATTER WAS GETTING BARRED BY LIMITATION AND THERE WAS LACK OF SERIOUSNESS, THEREFORE HE DECIDED TO COMPLETE THE PENDING REVISION PROCEEDING S. THE LD. CIT, THEREAFTER, SET ASIDE THE ASSESSMENT ORDER AND DIRE CTED FOR DENOVO ASSESSMENT. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION TO T HE AFFIDAVIT OF SHRI RAJENDER PRASAD TYAGI, DIRECTOR OF THE ASSESSEE COM PANY WHEREIN IT HAS BEEN SPECIFICALLY DEPOSED THAT THE NOTICE DATED 30.01.20 14 ISSUED UNDER SECTION 263 OF THE ACT WAS RECEIVED BY THE ASSESSEE ONLY ON 24. 02.2014 FIXING THE DATE OF HEARING ON 25.02.2014. THAT HE IMMEDIATELY FORWARD ED THE SAID NOTICE TO THE CHARTERED ACCOUNTANT OF THE COMPANY AND A REQUEST F OR ADJOURNMENT VIDE LETTER DATED 25.02.2014 WAS CARRIED PERSONALLY BY CHARTERE D ACCOUNTANT MS. HEENA DAGRIYA. HOWEVER, THE LD. CIT REFUSED TO ACCEPT TH E LETTER AND DID NOT GIVE ANY ADJOURNMENT. THEREAFTER, THE LD. CIT PASSED IM PUGNED REVISION ORDER. UNDER THE CIRCUMSTANCES NO PROPER OPPORTUNITY WAS G IVEN TO THE ASSESSEE TO REPRESENT ITS CASE. IT SEEMS THAT THE IMPUGNED ORDER UNDER SECTION 263 HAS BEEN PASSED BY THE LD. CIT IN A HASTE AS IT HAS ALSO BEEN POINTED OUT IN THE ORDER THAT THE MATTER WAS GETTING BARRED BY LIMITATION. IN VIEW O F THIS, BOTH THE REPRESENTATIVES OF THE PARTIES HAVE FAIRLY AGREED T HAT THEY HAVE NO OBJECTION, IF THE MATTER IS RESTORED TO THE LD. CIT WITH A DIRECT ION TO PASS A FRESH ORDER ON MERITS AFTER GIVING PROPER AND REASONABLE OPPORTUNI TY OF HEARING TO THE ASSESSEE. WE ACCORDINGLY RESTORE THIS MATTER TO TH E FILE OF THE LD. CIT TO PASS A FRESH ORDER AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.6333/M/2014 ITA NO.7762/M/2014 M/S. GANJAM TRADING CO. PVT. LTD. 4 5. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. NOW COMING TO THE SECOND APPEAL BEARING ITA NO.7 762/M/2014. ITA NO.7762/M/2014 7. THIS APPEAL IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) DATED 26.02.2014. WE FIND THAT THE APPEAL OF THE ASSESSEE AGAINST THE ASSESSMENT ORDER DATED 30.12.2011 UNDER SECTION 143(3) OF THE ACT HAS BEEN DISMISSED BY THE LD. CIT(A) ON THE GROUND THAT SINCE THE ASSESSM ENT ORDER HAS BEEN SET ASIDE BY THE LD. CIT UNDER SECTION 263 OF THE ACT, HENCE, THE IMPUGNED ASSESSMENT ORDER DID NOT SURVIVE AND THEREFORE THE APPEAL FILED BY THE ASSESSEE HAD BECOME INFRUCTUOUS. 8. SINCE WE HAVE ALREADY RESTORED THE MATTER IN REL ATION TO THE ORDER PASSED BY THE LD. CIT UNDER SECTION 263 OF THE ACT FOR DEC ISION AFRESH, HENCE UNDER THE CIRCUMSTANCES, TILL THE FRESH ORDER BY THE LD. CIT IN SET ASIDE PROCEEDINGS RELATING TO THE INVOCATION OF SECTION 263 OF THE AC T IS PASSED, THE A SSESSMENT ORDER DATED 30.12.2011 PASSED BY THE AO UNDER SECTI ON 143(3) OF THE ACT SURVIVES. HENCE, THE IMPUGNED ORDER OF THE LD. CIT (A) IN THIS APPEAL IS SET AIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SAME ON MERITS IN ACCORDANCE WITH LAW. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.09. 2016. SD/- SD/- (RAMIT KOCHAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 21.09.2016. * KISHORE, SR. P.S. ITA NO.6333/M/2014 ITA NO.7762/M/2014 M/S. GANJAM TRADING CO. PVT. LTD. 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.