WIMCO LTD, MUMBAI V. ACIT CIR 2(3), MUMBAI

ITA 986/MUM/2011

• Counselvise Citation: 98619914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 03-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C P PATNAIK
• Assessee Lawyers: K K VED
• Keywords: Opportunity of being heard
• Section: 143(3); 6

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI .. , !'# $ $ $ $ %&. !.'.. $( ) !'# !* BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN, JM !./ I.T.A. NO. 986 /MUM/2011 ( )( , $-, )( , $-, )( , $-, )( , $-, / / / / ASSESSMENT YEAR : 2005-06) WIMCO LTD., INDIAN MERCANTILE CHAMBERS, KAMANI MARG, BALLARD ESTATE, MUMBAI 400 028. ( ( ( ( / VS. THE ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 2(3), AAYAKAR BHAVAN, MAHARSHI KARVE MARG, MUMBAI - 20. #. !./ PAN : AAACW3082B ( ./ / // / APPELLANT ) .. ( 01./ / RESPONDENT ) ./ 2 3 ! / APPELLANT BY : SHRI K.K. VED 01./ 2 3 ! / RESPONDENT BY : SHRI K.C.P. PATNAIK !($ 2 / // / DATE OF HEARING : 17-09-13 45- 2 / DATE OF PRONOUNCEMENT : 20-09-2013 '6 / O R D E R PER P.M. JAGTAP, A.M. : .. , !'# THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A) - 6, MUMBAI DATED 18-11-2010 WHEREBY HE DISM ISSED THE APPEAL FILED BY THE ASSESSEE BEFORE HIM EX PARTE FOR NON-PROSECU TION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF SAFETY MATCHES AND PACKAGING MACHINES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON WAS FILED BY IT ON ITA 986/M/11 2 28-10-2005 DECLARING A LOSS OF RS. 10,70,93,817/-. IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 VI DE AN ORDER DATED 28-12- 2007, THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED BY THE A.O. AT A LOSS OF RS. 1,23,83,050/- AFTER MAKING VARIOUS ADDITIONS. T HE SAID ADDITIONS WERE CHALLENGED BY THE ASSESSEE IN AN APPEAL FILED BEFOR E THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE FOR N ON-PROSECUTION FOR THE NON- COMPLIANCE AND NON-COOPERATIVE ATTITUDE OF THE ASSE SSEE AS NOTED ON THE BASIS OF THE SEQUENCE OF EVENTS RECORDED IN PARA 3 OF HIS IMPUGNED ORDER AS UNDER:- 3. ON RECEIPT OF THIS APPEAL ON TRANSFER FROM CIT( A)-XXX, MUMBAI, THE SAME WAS FIXED FOR HEARING ON 10.08.20 10 AT 11.00 HRS. BY ISSUE OF A NOTICE U/S.250 OF THE I.T. ACT, 1961. HOWEVER, ADJO URNMENT WAS SOUGHT AND THE CASE WAS ADJOURNED FOR 18.08,2010. AGAIN, A LETTER DATED 17.08.2010 WAS FILED SEEKING ADJOURNMENT AND THE CA SE WAS ADJOURNED TO 06.09.2010. FURTHER, ADJOURNMENT WAS SOUGHT AND GRANTED FOR 20.09.2010. HOWEVER ON THAT DATE AGAIN, A LETTER RE QUESTING FOR ADJOURNMENT WAS FILED AND THE CASE WAS ADJOURNED FO R 12. 10.2010. A LETTER DATED 11.10.2010 WAS AGAIN FILED BY SHRI K. K. VED, C.A. FROM DELOITTE HASKINS & SELLS ON 12.10.2010 SEEKING ADJO URNMENT ON THE GROUND THAT WRITTEN SUBMISSIONS WERE STILL UNDER PR EPARATION. THE CASE WAS ADJOURNED FOR 16.11.2010 ON THE CONDITION THAT NO FURTHER ADJOURNMENT WILL BE ALLOWED SINCE THE WRITTEN SUBMI SSIONS WERE NOT BEING FILED DESPITE A LAPSE OF ALMOST THREE YEARS O F FILING OF APPEAL. FURTHER, AGAIN ON REQUEST, FINAL ADJOURNMENT FOR 18 .11.2010 WAS ALLOWED. HOWEVER, IT WAS MADE CLEAR TO THE AR THAT NO FURTHER ADJOURNMENT WILL BE POSSIBLE. HOWEVER, EVEN ON THA T DATE, ANOTHER ADJOURNMENT LETTER BI SEEKING FURTHER ADJOURNMENT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSES SEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL CHALLENGING THE ACTION OF THE L D. CIT(A) IN DISMISSING THE APPEAL FOR NON-PROSECUTION WITHOUT GOING INTO THE M ERIT OF THE ISSUES RAISED THEREIN AND DISPUTING THE VARIOUS ADDITIONS MADE TO ITS TOTAL INCOME ON MERIT. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDE S AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTE D BY THE LD. REPRESENTATIVE OF THE ASSESSEE, THE APPEAL FILED BY THE ASSESSEE F OR A.Y. 2006-07 WAS ALSO DISMISSED BY THE LD. CIT(A) EX-PARTE FOR NON-PROSEC UTION VIDE HIS APPELLATE ORDER OF EVEN DATE 18-11-2010 IN THE SIMILAR FACTS AND CIRCUMSTANCES AND ITA 986/M/11 3 WHILE DISPOSING OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE SAID ORDER OF THE LD. CIT(A), THE TRIBUNAL HAS RESTORED THE MATTE R TO THE FILE OF THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE ON MERI T FOR THE FOLLOWING REASONS GIVEN IN PARA 4 OF ITS ORDER DATED 17-4-2013 PASSED IN ITA NO. 232/MUM/2011:- 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. DURING THE APPELLATE PROCEEDINGS, THE AS SESSEE HAD SOUGHT SEVERAL ADJOURNMENTS WHICH HAD BEEN ALLOWED BY CIT( A) AND THE CASE HAD BEEN LAST FIXED FOR HEARING ON 18.11.2010 ON WH ICH DATED THE ASSESSEE SOUGHT FURTHER ADJOURNMENT ON THE GROUND T HAT THE PERSON DEALING WITH INCOME TAX MATTERS HAD LEFT THE COMPAN Y AND THE NEW TEAM WAS TAKING TIME TO COMPILE DETAILS. THE RELEVA NT LETTER DATED 17.11.2010 HAS BEEN PLACED ON RECORD. IN OUR VIEW C ONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE PERSON DEALING WITH INCOME TAX MATTERS HAD LEFT THE COMPANY AND ALSO TH E FACT THAT NO LIMITATION DATE WAS INVOLVED FOR PASSING THE ORDER, ONE MORE OPPORTUNITY WAS REQUIRED TO BE GIVEN TO THE ASSESSE E. MOREOVER, WE ALSO FIND THAT CIT(A) HAS NOT ADJUDICATED THE VARIOUS GR OUNDS RAISED BY THE ASSESSEE ON MERIT AS HE WAS REQUIRED TO DO UNDER LA W. UNDER PROVISIONS OF SUB SECTION 6 OF SECTION 250, CIT(A) IS REQUIRED TO DISPOSE OFF THE APPEAL IN WRITING, STATING POINTS FOR DETERMINATION , THE DECISION THEREON AND THE REASON FOR THE DECISION. CIT(A) IN THIS CAS E HAS NOT AT ALL DEALT WITH THE VARIOUS POINTS FOR DETERMINATION RAISED IN THIS APPEAL. THEREFORE ON THIS GROUND ALSO THE ORDER OF CIT(A) C AN NOT BE UPHELD. WE, THEREFORE SET ASIDE THE ORDER OF CIT(A) AND RES TORE THE MATTER BACK TO HIM FOR PASSING A FRESH ORDER ADJUDICATING THE V ARIOUS DISPUTES RAISED BY THE ASSESSEE AFTER ALLOWING ONE MORE OPPO RTUNITY OF HEARING TO THE ASSESSEE. 4. AS THE FACTS INVOLVED IN THE YEAR UNDER CONSIDER ATION ARE SIMILAR TO A.Y. 2006-07, WE RESPECTFULLY FOLLOW THE ORDER OF THE TR IBUNAL FOR A.Y. 2006-07 AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) FO R DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL ON MERIT. ITA 986/M/11 4 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. )( ,7 2 !82 9:; < #$ = 2 >? ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2013. . '6 2 45- @'(A 20-09-2013 5 2 SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP ) ) !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; @'( DATED 20-09-2013 $.)(.!./ RK , SR. PS '6 2 0) !> !> !> ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI