M/S CLIFTON FLAME INDUSTRIES, MUMBAI V. ITO 22(2)(1), MUMBAI

ITA 865/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9596 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1994-1995
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: K SHIVARAM; NEELAM C JADHAV
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) I.T.A. NO. 865 /MUM/20 1 8 (ASSESSMENT YEAR 1994 - 95 ) M/S. CLIFTON FLAME INDUSTRIES C/O. SATYENDRA PATEL C - 905, JUHU GRAH SWAPNA GULMOHAR ASSE SSEE ROAD NO. 4, VILE PARLE WEST MUMBAI - 400 049. PAN : AAAFC3628C VS. ITO - 25(2)(2) PRATYAKSHA KAR BHAVAN BANDRA KURLA COMPLEX BANDRA - EAST MUMBAI - 400051. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI K. SHIVARAM & MS. NEELAM C. JADHAV DEPARTMENT BY SHRI RAJESHKUMAR YADAV DATE OF HEARING 27 . 1 1 . 201 8 DATE OF PRONOUNCEMENT 27 . 1 1 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 29.11.2017 PASSED BY THE LEARNED CIT(A) - 37, MUMBAI AND IT RELATES TO A.Y. 1994 - 95. 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE LEARNED CIT(A) HAS DISMISSED THE APPEAL IN LIMINE FOR THE FAILURE OF THE ASSESSEE TO APPEAR BEFORE HIM. WE NOTICED THAT THIS IS SECOND ROUND OF PROCEEDIN GS BEFORE THE LEARNED CIT(A). IN THE FIRST ROUND , THE ORDER WAS PASSED BY THE LEARNED CIT(A) ON 26.3.2007 DISMISS ING THE APPEAL OF THE ASSESSEE. W HEN THE MATTER WAS TAKEN UP BEFORE THE TRIBUNAL, ITAT HAS RESTORED THE MATTERS TO THE FILE OF THE LEARNED CIT( A) VIDE ITS ORDER DATED 31.7.2008 PASSED IN ITA NO. 4714/MUM/2007 FOR ADJUDICATING THEM AFRESH . ACCORDINGLY THE APPEAL CAME TO BE HEARD BY THE LEARNED CIT(A) AGAIN. IN THE ORDER, LEARNED CIT(A) OBSERVED THAT CASE WAS FIXED FOR HEARING ON 16.1.2014 AND THER EAFTER M/S. CLIFTON FLAME INDUSTRIES 2 ADJOURNED FOR SEVERAL TIMES AT THE REQUEST OF ASSESSEE. SINCE T HE ASSESSEEDID NOT ATTEND HEARING AND IT KEPT ON FILING ADJOURNMENT LETTERS , THE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE. 3 . THE LEARNED AR SUBMITTED THAT THE LEA RNED CIT(A) HAD ORIGINALLY HEARD THE MATTER IN SET ASIDE PROCEEDINGS ON 15.9.2008 AND DETAILS THAT WERE CALLED FOR BY HIM WERE DULY FURNISHED BEFORE THE LEARNED CIT(A). THE THEN THE LEARNED CIT(A) ALSO CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND THE SAID REMAND REPORT WAS ALSO FORWARDED TO THE ASSESSEE ON 20.4.2012 FALLING FOR COMMENTS OF THE ASSESSEE. THE LD CIT(A) POSTED THE APPEAL FOR HEARING ON 8.5.2012 AND ASSESSEE APPEARED BEFORE HIM ON THAT DATE AND FURNISHED ITS REPLY AGAINST REMAND RE PORT. THEREAFTER, NO COMMUNICATION WAS RECEIVED FROM THE LEARNED CIT(A). 4 . THEREAFTER, THE ASSESSEE RECEIVED NOTICE FROM THE LEARNED CIT(A) ON 7.1.2014 ASKING THE ASSESSEE TO APPEAR BEFORE HIM ON 16.1.2014. DUE TO REASONS BEYOND CONTROL OF THE ASSESSEE, IT HAD TO SEEK ADJOURNMENT FROM TIME TO TIME AND HENCE THE LEARNED CIT(A) HAS PASSED THE IMPUGNED ORDER DISMISSING THE APPEAL OF THE ASSESSEE. THE LEARNED AR SUBMITTED THAT THE LEARNED CIT(A) HAS NOT REFERRED TO ANY OF THE DOCUMENTS FURNISHED BY THE ASSESS EE BEFORE HIM IN THE YEAR 2008 , REMAND REPORT GIVEN BY THE ASSESSING OFFICER AND ALSO REPLY GIVEN BY THE ASSESSEE AGAINST REMAND REPORT IN THE YEAR 2012 . ACCORDINGLY THE LD A.R SUBMITTED THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL O F THE ASSESSEE WITHOUT CONSIDERING THE VARIOUS DOCUMENTS ALREADY FURNISHED BEFORE HIM . 5 . THE LEARNED DR, ON THE CONTRARY, SOUGHT ADJOURNMENT ON THE REASONING THAT THE ASSESSEE HAS FURNISHED REVISED GROUNDS OF APPEAL, WHEREIN SEVERAL ISSUES HAVE BEEN RAIS ED AND HENCE HE NEED TIME TO PREPARE THE CASE. WHEN WE PROCEEDED TO HEAR THE ASSESSEE AND DISPOSE OF THE CASE, THE LD D.R REITERATED THAT THE APPEAL SHOULD BE ADJOURNED AS PER HIS REQUEST. THE BENCH, THEN POINTED OUT TO HIM THAT THE LD CIT(A) HAS DISMISS ED THE APPEAL OF THE ASSESSEE M/S. CLIFTON FLAME INDUSTRIES 3 IN LIMINE, WITHOUT CONSIDERING THE DOCUMENTS FILED BY THE ASSESSEE, REMAND REPORT CALLED FOR FROM THE AO AND THE REPLY OF THE ASSESSEE TO THE REMAND REPORT. ACCORDINGLY, WE REJECT THE ADJOURNMENT REQUEST OF THE LD D.R AND PRO CEED TO DISPOSE OF THE APPEAL. 6 . WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE LEARNED CIT(A) HAS PASSED EX - PARTE ORDER, WITHOUT HEARING THE ASSESSEE. AS NOTICED EARLIER THE MATTER WAS RESTORED TO THE FILE OF THE LEARNED CIT(A) BY THE COORDINATE BENCH OF THE TRIBUNAL WAY BACK IN JULY, 2008. FROM THE AFFIDAVIT AS WELL DETAILS FURNISHED BY THE ASSESSEE, WE NOTICED THAT THE LEARNED CIT(A) HAS HEARD THE MATTER IN SEPTEMBER, 2008, AND MAY, 2012 . I N BETWEEN , THE LEARNED CIT(A) HAS ALSO C ALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER ON VARIOUS DETAILS FURNISHED BY THE ASSESSEE AND ASSESSEE ALSO FURNISHED ITS REPLY AGAINST REMAND REPORT. WE NOTICED THAT THE LEARNED CIT(A) HAS NOT REFERRED TO ANY OF THOSE DOCUMENTS IN THE PRESENT ORDER . HENCE, WE ARE OF THE VIEW THAT THE ASSESSEE ALONE CANNOT BE FIND FAULT WITH , AS HEARING HAS BEEN CONCLUDED BY THE LEARNED CIT(A) WAY BACK IN MAY, 2012 ITSELF AND NO ORDER WAS PASSED BY HIM. SUBSEQUENTLY, WHEN THE LEARNED CIT(A) AGAIN I SSUED NOTICED ON 7.1 .2014 AND OTHER DATES, IT APPEARS THAT THE ASSESSEE COULD NOT BE PRESENT BEFORE THE HIM FOR REASONS BEYOND CONTROL OF THE ASSESSEE. HENCE, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THIS APPEAL SHOULD BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATING THE ISSUES ON MERIT S. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE ALL THE ISSUES TO HIS FILE FOR ADJUDICATING THEM AFRESH BY DULY CONSIDERING THE MATERIALS, REMAND REPORT AND THE REPLY TO THE REMAND REPORT FILED BY THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO CO - OPERATE WITH LD CIT(A) BY DULY FURNISHING VARIOUS DETAILS THAT MAY BE CALLED FOR BY LD CIT(A). M/S. CLIFTON FLAME INDUSTRIES 4 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PU RPOSES. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 27 . 1 1 .201 8 . SD/ - SD/ - (SANDEEP GOSAIN ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 27 / 1 1 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI