BHAGYASHALI TEXTILES MILLS P.LTD, MUMBAI V. ITO WD 4(1)(3), MUMBAI

ITA 9143/MUM/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8167 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 29-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU JIT BANGAR
• Assessee Lawyers: S ATISH CHANDAK
• Keywords: Principle of natural justice

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , , BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMB ER . / ITA NO. 9143 / MUM./ 2010 ( / ASSESSMENT YEAR : 20 0 6 07 ) M/S. BHAGYASHALI TEXTILES MILLS PVT. LTD. 134/140, GOVARDHAN NIKETANM CAVEL ST, GROUND FLOOR BEHIND SWADESHI MARKET KALBADEVI ROAD, MUMBAI 400 002 .. / APPELLANT V/S INCOME TAX OFFICER WARD 4(1)(3), MUMBAI .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AAACB5864E / ASSESSEE BY : SHRI SATISH CHANDAK / REVENU E BY : SHRI SUJIT BANGAR / DATE OF HEARING 11 .0 9 .2014 / DATE OF ORDER 19.09.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSE SSEE CHALLENGING THE IMPUGNED ORDER DATED 6 TH OCTOBER 2010, PASSED BY THE LEARNED COMMISSIONER (APPEALS) VIII , MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3), OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 0 6 07 , ON THE FOLLOWING GROUNDS: M/S. BHAGYASHALI TEXTILES MILLS PVT. LTD. 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT AFFORDING ADEQUATE OPPORTUNITY OF THE BEING HEARD AND THEREBY ERRED IN DISMISSING THE APPEAL EX - PARTE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OFRS . 19 , 02,161 / - MADE BY THE LD . AO BY INVOKING THE PROVISIONS OF SECTION 40( A)(IA) OF THE INCOME TAX ACT , 1961 . 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.12,801 / - MADE BY THE LD. AO ON ACCOUNT OF ALLEGED DIFFERENCE BETWEEN THE FUEL CHARGES CLAIMED AND BILLS FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE AO ' S ACTION OF NOT ALLOWING THE SET - OFF OF THE CARRIED FORWARD BUSINESS LOSS AND UNABSORBED DE PRECIATION OF EARLIER YEARS. 2. AT THE OUTSET, THE LEARNED COUNSEL SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) HAS DECIDED THE APPEAL EX PARTE AFTER REJECTING THE ADJOURNMENT APPLICATION DATED 4 TH OCTOBER 2010, FILED BEFORE HIM AND, HENCE, THE ASSES SEE WAS PREVENTED TO REPRESENT ITS CASE ON MERITS. HE REQUESTED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) TO BE HEARD ON MERITS AFTER GIVING OPPORTUNITY TO T HE ASSESSEE TO PRESENT ITS CASE AND THE ORDER OF TH E LEARNED COMMISSIONER (APPEALS) SHOULD BE CONFIRMED AS SUCH. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT SEVERAL OPPORTUNITIES WERE GIVEN BY THE LEARNED COMMISSIONER (APPEALS) WHICH IS MENTIONED IN PARA 1 OF THE APPELLATE O RDER AND, THEREFORE, THE SAME SHOULD NOT BE RESTORED BACK. M/S. BHAGYASHALI TEXTILES MILLS PVT. LTD. 3 4. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIONS AND ALSO ON PERUSAL OF THE IMPUGNED ORDER, WE FIND THAT THOUGH THE LEARNED COMMISSIONER (APPEALS) HAS MENTIONED THAT SEVERAL OPPORTUNITIES HAVE BE EN GRANTED T O THE ASSESSEE , HOWEVER, ON ALL OCCASIONS, ASSESSEE SOUGHT REPEATED ADJOURNMENTS . IT IS NOT CLEAR FROM THE RECORDS AS TO HOW AND UNDER WHICH CIRCUMSTANCES, ADJOURNMENT WAS SOUGHT. WHETHER ANY SHOW CAUSE FOR LAST OPPORTUNITY WAS GIVEN OR NOT. WH AT IS APPARENT IS THAT ON 4 TH OCTOBER 2010, THE ASSESSEE FILED AN ADJOURNMENT APPLICATION ON THE GROUND THAT CERTAIN DETAILS WHICH ARE ESSENTIAL FOR CONDUCTING THE APPEAL COULD NOT BE MADE AVAILABLE AND, THEREFORE, SOME TIME SHOULD BE GIVEN. SEEKING OF ADJ OURNMENT IS NOT A MATTER O F RIGHT, HOWEVER, THE PRINCIPLES OF NATURAL JUSTICE DEMANDS THAT DUE AND EFFECTIVE OPPORTUNITY OF HEARING SHOULD BE GIVEN TO THE ASSESSEE FOR PRESENTING ITS CASE AS FAR AS POSSIBLE . THEREFORE, IN THE INTEREST OF JUSTICE, WE SET AS IDE THE ENTIRE MATTER TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS) TO DECIDE THE ISSUE AFRESH AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL PRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER (APPEALS) WITHOUT SEEKING ANY FURTHER ADJOURNMENT EXCEPT UNDER BONAFIDE REASONS. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. M/S. BHAGYASHALI TEXTILES MILLS PVT. LTD. 4 5. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 19 TH SEPTEMBER 2014 ORDER PRONOUNCED IN THE OPEN COURT O N 19 TH SEPTEMBER 2014 SD/ - . . R.C. SHARMA ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 19 TH SEPTEMBER 2014 / COPY OF THE ORDER FORWARDED TO : (1) / THE ASSESSEE ; (2) / TH E REVENUE; (3) ( ) / THE CIT(A ) ; (4) / THE CIT, MUMBAI CITY CONCERNED ; (5) , , / THE DR, ITAT, MUMBAI ; (6) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI