TRANSMED INDIA, V. ITO WD 18(2)(2),

MA 276/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3813 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 1996-1997
• Appeal Filed On: 28-04-2010
• Court: TRIBUNAL
• Department Lawyers: ARUN C BHARAT
• Assessee Lawyers: S C TIWARI; MEGHANA BUTALA
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI. N.V. VASUDEVAN (J.M.) AND SHRI. R. K. PANDA (A.M) M.A. NO.276/MUM/2010 (ARISING OUT OF ITA NO.2113/MUM/2007 ) ASSESSMENT YEAR : 1996-1997 M/S. TRANSMED INDIA 22, RAKHI MAHAL, DINSHAW VACHA RD., MUMBAI 400 020. PAN : AAEFT6956G VS. I.T.O. WARD 18(2)(2), PIRAMAL CHAMBERS, LALBAUG, MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.C. TIWARI & MS. MEGHANA BUTALA RESPONDENT BY : SHRI ARUN C. BHARAT O R D E R PER N.V. VASUDEVAN, J.M. THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE PRAYING THAT THE ORDER DATED 01.04.2009 PASSED BY THE TRIBUNAL I N THE ABOVE APPEAL BE RECALLED AND THE APPEAL MAY BE DECIDED AFRESH IN AC CORDANCE WITH LAW. 2. THE ABOVE APPEAL BY THE ASSESSEE WAS AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE ORDER OF THE ASSESSING OFFICER IMPOS ING PENALTY ON ASSESSEE U/S.271(1)(C) OF THE ACT. THE ASSESSEE FILED AN APPEAL AGAINST ORDER OF THE ASSESSING OFFICER IMPOSING PENALTY U/S.271(1)(C) OF THE ACT. THERE WAS A DELAY IN FILING APPEAL BEFORE THE CIT(A) AGAINST TH E ORDER OF THE ASSESSING OFFICER IMPOSING PENALTY U/S.271(1)(C). THE CIT( A) REFUSED TO CONDONE THE DELAY IN FILING THE APPEAL AND THUS HE DID NOT GO I NTO THE MERITS OF IMPOSITION OF PENALTY BY THE ASSESSING OFFICER ON T HE ASSESSEE. IN THE APPEAL BEFORE THE TRIBUNAL THE ASSESSEE POINTED OUT THAT THE ADDITION IN RESPECT OF WHICH PENALTY WAS IMPOSED BY THE ASSESSI NG OFFICER WERE CHALLENGED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE TRIBUNAL SET ASIDE THE ORDER OF THE CIT(A) AND REMANDED THE ISSUE TO THE C IT(A) FOR FRESH CONSIDERATION. THE TRIBUNAL AFTER RECORDING THE A BOVE FACTS WHICH WERE M.A. NO.276/MUM/2010 A.Y.: 1996-1997 2 BROUGHT TO ITS NOTICE BY THE ASSESSEE OBSERVED THA T, NO REASONS WERE GIVEN BY THE ASSESSEE FOR FILING THE APPEAL BEFORE THE CI T(A) BELATEDLY. THE TRIBUNAL THEREFORE, DISMISSED THE ASSESSEES APPEAL. 3. IN THIS MISCELLANEOUS APPLICATION ASSESSEE HAS P OINTED OUT THAT WHEN THE QUANTUM ADDITION HAVE BEEN SENT BACK TO THE CIT (A) FOR FRESH CONSIDERATION THERE CAN NOT BE ANY BASIS FOR IMPOSI TION OF PENALTY ON ADDITION WHICH DID NOT SURVIVE. IT WAS FURTHER PO INTED OUT THAT BECAUSE OF THIS ASPECT OF THE CASE NO SUBMISSIONS WERE MADE WI TH REGARD TO CONDONATION OF DELAY. THE ASSESSEE HAS THEREFORE P RAYED THAT THE ORDER OF THE TRIBUNAL DATED 01.04.2009 SUFFERS FROM AN APPAR ENT MISTAKE AND THE SAME SHOULD BE RECALLED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE FACTS AS STATED ABOVE AND FURTHER RELIED ON THE DECISION OF THE HON BLE MADRAS HIGH COURT IN THE CASE OF HIND MERCANTILE CORPORATION 177 ITR 149 (MAD), WHEREIN IT WAS HELD THAT WHEN ASSESSMENT ORDER IS SET ASIDE FOR DE NOVO ASSESSMENT, THE QUESTION OF IMPOSITION OF PENALTY HAS TO BE CONSIDE RED IN THE LIGHT OF THE FINDING IN THE ASSESSMENT TO BE MADE AS A RESULT OF DIRECTIONS GIVEN BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF T HE TRIBUNAL. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE ARE O F THE VIEW THAT THE ASSESSEE WAS NOT AFFORDED PROPER OPPORTUNITY OF BEI NG HEARD WITH REGARD TO THE REASONS FOR THE DELAY IN FILLING THE APPEAL BEF ORE THE CIT(A). THE ASSESSEE ON THE BELIEF THAT IN VIEW OF THE ORDER OR THE TRIBUNAL SETTING ASIDE THE ADDITIONS MADE IN THE QUANTUM PROCEEDING IN RES PECT OF WHICH PENALTY WAS IMPOSED DID NOT ADVANCE ANY ARGUMENT ON THE ASP ECT OF CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE CIT(A). IN OUR VIEW THE ASSESSEE HAS TO BE GIVEN AN OPPORTUNITY FOR EXPLAINING THE DELAY. WE THEREFORE, RECALL THE ORDER DATED 01.04.2009 AND DIRECT THAT THE APPEAL B E LISTED FOR FRESH HEARING IN DUE COURSE. M.A. NO.276/MUM/2010 A.Y.: 1996-1997 3 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. ORDER PRONOUNCED ON THIS 30 TH JUNE, 2010. SD/- (R.K. PANDA) (ACCOUNTANT MEMBER) SD/- (N.V. VASUDEVAN) (JUDICIAL MEMBER) MUMBAI, DATED 30 TH JUNE, 2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- , MUMB AI 4. COMMISSIONER OF INCOME TAX, CITY- , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH E, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI