KONAKCAPFIN LTD, MUMBAI V. ITO 6(2)(4), MUMBAI

ITA 8882/MUM/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3108 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 20-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRA
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, J M AND SRI RAMIT KOCHAR , A M ITA NO . 8 882 /MUM/2010 (A.Y.:2006 - 07 ) KONKAN CAPFIN LTD.,419, HIND RAJASTHAN BUILDING, D. S. PHALKE ROAD, DADAR (E), MUMBAI 400 014 VS. THE INCOME TAX OFFICER, WARD - 6 (2)(4), ROOM NO.512, AAYAKAR BHAVAN, MUMBAI AAACK 3228 P APPELLANT .. RESPONDENT ITA NO .8888/MUM/2010 (A.Y.:2006 - 07 ) KONKAN EXPORTS LTD., 419, HIND RAJASTHAN BUILDING, D. S. PHALKE ROAD, DADAR (E), MUMBAI 400 014 VS. THE INCOME TA X OFFICER, WARD - 6 (2)(4), ROOM NO.512, AAYAKAR BHAVAN, MUMBAI AAACK 3057 G APPELLANT .. RESPONDENT APPELLANT BY NONE RESPONDENT BY SHRI A. RAMACHANDRA, DR DATE OF HEARING 16/06/2016 DATE OF PRONOUNCEMENT 17/06/2016 O R D E R PER MAHAVIR SINGH , JM : THESE TW O APPEALS BY DIFFERENT ASSESSEES ARE ARISING OUT OF THE DIFFERENT ORDERS OF THE CIT (A) - 12, MUMBAI PASSED IN APPEAL NO S . CIT (A) - 12/ITO.6(2)(4)/132 &32/08 - 09 VIDE HIS ORDERS OF SAME DATE 20 - 09 - 2010. IN BOTH THE CASES ASSESSMENTS WERE MADE BY THE ITO , WARD 6 (2) - 4 , MUMBAI FOR THE ASSESSMENT YEAR 2006 - 07 VIDE HIS ORDERS DATED 04 - 11 - 2008 PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE (ACT). 2. AT THE OUTSET, IT IS NOTICED THAT IN BOTH THE APPEALS OF THE ASSESSEE THE ASSESSMENT ORD ERS ARE EX - PARTE AND ASSESSMENTS WERE FRAMED U/S 144 OF THE ACT. IN BOTH THE CASES, THE DISALLOWANCES BY ESTIMATING GROSS PROFIT @5% OF THE TURNOVER, AD HOC DISALLOWANCE ITA NO. 8 882 & 8888 /MUM/20 1 0 2 OF EXPENSES AT @25% AND ADDITIONS ON UNSECURED LO ANS WERE MADE. WE ALSO FIND THAT THE CIT (A)S ORDERS IN BOTH THE CASES ARE NON - SPEAKING AND JUST CONFIRMING T HE ORDERS OF THE AO BY STATING THAT THE ORDERS OF THE AO DOES NOT CALL FOR INTERFERENCE. 3. IN VIEW OF THE ABOVE FACTS, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT NEITHER THE C IT (A) NOR THE AO HAS ADJUDICATED TH E ISSUES AND THE AOS ASSESSMENT ORDERS ARE EX - PARTE AND ASSESSMENTS WERE FRAMED U/S 144 OF THE ACT WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. UNDER SUCH FACTS, THE LEARNED COUNSEL FOR THE A SSESSEE REQUESTED FOR SETTING ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND FOR REMITTING THE MATTER BACK TO THE FILE OF THE AO. 4. ON THE OTHER HAND, THE LEARNED SR. DR ALSO HAS NOT OPPOSED TO THE SETTING ASIDE OF THE ORDERS OF THE LOWER AUTHORITIES AND REMITTING THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION. HOWEVER, THE LEARNED SR . DR REQUESTED THE BENCH THAT THE ASSESEEE BE DIRECTED TO COOPERATE IN THE ASSESSMENT PROCEEDINGS BY PRODUCING ALL NECESSARY DETAILS AND EVIDENCES INCLUDING THE BOOKS OF ACCOUNT. NEEDLESS TO SAY THAT THE ASSESSEE WILL PRODUCE THE DETAILS CALLED FOR BY THE AO TO PROVE THEIR CLAIM. IN T HE ENTIRETY OF THE FACTS OF THE CASE, WE FEEL THAT THE ORDERS OF THE AUTHORITIES BELOW LACK ADJUDICATION AND ALSO LACK OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN TERMS OF THESE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES IN BOTH THE CASES AND REMIT THE ISSUES BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. ITA NO. 8 882 & 8888 /MUM/20 1 0 3 5. IN THE RESULT, THE APPEAL S OF BOTH THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 17 /06 / 201 6 . SD/ - SD/ - ( RAMIT KOCHAR ) ( MAHAVIR SINGH ) ACC OUNTANT MEMBER JUDICIAL MEMBER MUMBAI , DATED 17 /6 / 201 6 LAKSHMIKANTA DEKA/SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI DATE INITIAL DICTATION PAD ATTACHED WITH THE DRAFT ORDER YES 1. DRAFT DICTATED ON 17 - 06 - 16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 2 0 - 06 - 16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT ( A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//