M/s. Munjal Auto Industries Ltd., Baroda V. The Income tax Officer,Ward-4(1), Baroda

MA 317/AHD/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7831 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 23-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NK GOEL
• Assessee Lawyers: NIRMIT ME H TA
• Keywords: Opportunity of being heard; Reasonable cause; Set aside

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 317/AHD/2019 ( IN I.T.A. NO. 784/AHD/2013) ( ASSESSMENT YEAR : 2003-04) M/S. MUNJAL AUTO INDUSTRIES LTD. 187, GIDC ESTATE, WAGHODIA, BARODA - 391760 / VS. INCOME TAX OFFICER WARD 4(1), AAYKAR BHAVAN, RACE COURSE ROAD, VADODARA - 390007 ./ ./ PAN/GIR NO. : AAACG8588L ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI NIRMIT MEHTA, A.R. / RESPONDENT BY : SHRI N. K. GOEL, SR.D.R. DATE OF HEARING 17/01/2020 !'# / DATE OF PRONOUNCEMENT 27/01/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF ASSESSEE SEEKING RECALL OF EX PARTE ORDER DATED 29.03.2019 PASSED BY THE TRIBUNAL UNDER S.254(1) OF THE ACT WH EREBY THE APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE FOR WANT OF PROSECUTION OF ITS APPEAL FILED BY ASSESSEE. M.A. NO. 317/AHD/19 [M/S. MUNJAL AUTO INDUSTRIES LTD. VS. ITO] A.Y. 2003-04 - 2 - 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE VIDE ITS MISCELLANEOUS APPLICATION CONTEND ED AS UNDER: 1. THE APPLICANT HEREIN WAS APPELLANT IN ITA NO. 7 84/AHD/2013. 2. THE ABOVE REFERRED MATTER CAME BEFORE THE 'D BE NCH' COMPRISING OF HON'BLE PRADIP KUMAR KEDIA, AM AND HON'BLE SHRI MAHAVIR PRASAD, JM. THE HON'BLE BENCH VIDE ORDER DATED 29.0 3.2019 DECIDED THE APPEAL EXPARTE. THE ORDER WAS SERVED ON THE APPLICANT ON 19.04.2019. THE PRESENT APPLICATION IS FILED BY THE APPLICANT REQUESTING THE HON'BLE BENCH FOR SETTING ASIDE THE EXPARTE ORDER AND RESTORING THE APPEAL. 3. IT IS SUBMITTED THAT FOR THE YEAR UNDER CONSIDE RATION, THE APPLICANT WAS IN APPEAL BEFORE THE HON'BLE ITAT ON THE ISSUE OF REDUCTION OF SUBSIDY FROM THE COST OF FIXED ASSET. THE HON'BLE ITAT VIDE ORDER DATED 21-12-2011, HAD DIRECTED THE AO TO REDUCE THE SUBSIDY FROM THE COST OF THE FIXED ASSET . THE DIRECTION OF THE HON'BLE ITAT TO REDUCE THE SUBSIDY FROM THE COST OF FIXED HAD CONSEQUENTIAL EFFECT ON THE AMOUNT OF DEPRECIAT ION ON FIXED ASSETS AND THEREBY ON BOOK PROFITS U/S 115 JB OF TH E INCOME TAX ACT, 1961('THE ACT'). CONSEQUENTLY, THE AO RECOMPUT ED THE AMOUNT OF BOOK PROFITS U/S 115 JB OF THE ACT. IN TH E PRESENT APPEAL, THE APPLICANT HAD CHALLENGED THE ACTION OF THE AO IN RECOMPUTING THE BOOK PROFITS U/S 115 JB. 4. FURTHER, AGAINST THE ORDER DATED 21-12-2011 OF THE HON'BLE ITAT, THE APPLICANT HAD FILED AN APPEAL BEFORE THE HON'BLE GUJARAT HIGH COURT. THE HON'BLE GUJARAT HIGH COURT VIDE ORDER DATED 12-02-2013 HAD SET ASIDE THE MATTER TO THE FI LE OF HON'BLE ITAT TO DECIDE ON THE ISSUE OF REDUCTION OF SUBSIDY FROM THE COST OF FIXED ASSETS. THE APPLICANT HAD FILED AN APPLICA TION DATED 03- 02-2014 BEFORE THE HON'BLE ITAT TO FIX THE HEARING PURSUANT TO THE DIRECTIONS OF THE HON'BLE GUJARAT HIGH COURT. C OPY OF THE APPLICATION IS ATTACHED AS ANNEXURE-1 . HOWEVER, THE MATTERS HAVE NOT BEEN FIXED FOR HEARING TILL DATE. 5. SINCE THE QUANTUM MATTERS, PURSUANT TO THE DI RECTIONS OF THE HON'BLE GUJARAT HIGH COURT WERE PENDING DISPOSAL BE FORE THE HON'BLE ITAT, THE PRESENT APPEAL BEING CONSEQUENTIA L IN NATURE COULD BE DECIDED ONLY AFTER IT WAS DECIDED IN THE Q UANTUM MATTER, WHETHER THE SUBSIDY IS REQUIRED TO BE REDUC ED FROM THE COST OF FIXED ASSETS. HENCE, THE APPLICANT HAD FILE D AN APPLICATION ON 28-03-2019 TO ADJOURN THE HEARING OF THE PRESENT APPEAL WITH A REQUEST TO FIX THE HEARING OF THE PRE SENT APPEAL AFTER THE DISPOSAL OF QUANTUM MATTER. COPY OF THE APPLICATION FOR ADJOURNMENT IS ATTACHED AS ANNEXURE-2 . 6. HOWEVER, THE HON'BLE BENCH VIDE ORDER DATED 29-0 3-2019 DISMISSED THE CASE OF APPELLANT STATING AS UNDER '2. AT THE TIME OF THE HEARING, NONE APPEARED ON BE HALF OF THE APPELLANT-ASSESSEE. CASE FILES REVEALS THAT NONE AP PEARED FOR M.A. NO. 317/AHD/19 [M/S. MUNJAL AUTO INDUSTRIES LTD. VS. ITO] A.Y. 2003-04 - 3 - ASSESSEE ON EARLIER OCCASIONS ALSO WITHOUT ANY INTI MATION. IN THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, IN THE ABSENCE OF ANY REPRESENTATION ON BEHALF OF THE ASSESSEE OR PETITION SEEKING TIME, IT CAN BE PRESUMED THAT THE ASSESSEE IS NOT SERIOUS IN PURSUING THE APPEAL FILED. ACCORDINGLY T HE ONLY ALTERNATIVE LEFT IS TO DISMISS THE APPEAL OF THE AS SESSEE IN LIMINE. SUPPORT IS DRAWN FROM THE ORDER OF THE T RIBUNALS IN COMMISSIONER OF INCOME TAX VS. MULTI PLAN INDIA (P) LTD.; 38ITD 320 (DEL) AND ESTATE OF LATE TUKOJIRAO HOLKAR VS. C WT: 223ITR 480 (M.P.). ' 7. IT IS SUBMITTED THAT THE QUANTUM APPEALS ARE PEN DING DISPOSAL AND THE PRESENT APPEAL, BEING CONSEQUENTIAL IN NATU RE, CAN BE DECIDED ONLY AFTER DISPOSAL OF THE QUANTUM APPEAL. THE APPLICANT HAD ALSO FILED AN APPLICATION FOR FIXING THE HEARIN G OF THE QUANTUM APPEAL AND HAD ALSO FILED AN APPLICATION FO R ADJOURNMENT DATED 28-03-2019 REQUESTING THE HON'BLE BENCH TO FIX THE HEARING OF THE PRESENT APPEAL AFTER THE DIS POSAL OF THE QUANTUM APPEALS. WE ALSO SUBMIT THAT THE APPLICATIO N WAS DULY FILED AND WAS AVAILABLE ON RECORD. HOWEVER, THE APP LICATION FILED BY THE APPLICANT HAS NOT BEEN CONSIDERED BY THE HON 'BLE BENCH AND THE HON'BLE BENCH HAS PASSED AN EX-PARTE ORDER. SINCE THE APPLICATION DATED 28-03-2019 HAS NOT BEEN CONSIDERE D AND AN EX- PARTE ORDER HAS BEEN PASSED, IT HAS RESULTED IN A M ISTAKE AND WE REQUEST THE HON'BLE BENCH TO RECTIFY THE SAME BY RE CALLING THE ORDER DATED 28-03-2019. 8. IN VIEW THEREOF, IT MAY BE, IN FITNESS OF THIN GS THAT THE ORDER MAY BE RECALLED AND FRESH ORDER MAY BE PASSED AFTER GIV ING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPLIC ANT. 9. THE FEES REQUIRED TO BE PAID HAS BEEN PAID AND CHALLAN EVIDENCING THE PAYMENT OF RS. 50/- FOR THE FEES IS ENCLOSED HEREWITH FOR YOUR RECORD. IN VIEW OF THE ABOVE SUBMISSIONS YOUR APPLICANT MOS T RESPECTFULLY PRAYS AS UNDER:- 1. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 29.03.2019 MAY PLEASE BE RECALLED AND THE APPEAL BE DECIDED AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD I N THE MATTER. 2. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 29.03.2019 MAY PLEASE BE RECALLED AND FIXED FOR HEA RING ALONG WITH THE QUANTUM APPEALS CONSIDERING THE APPLICATIO N DATED 03- 02-2014 ATTACHED AS ANNEXURE-1 . 3. SUCH OTHER ORDER AS THE HON'BLE TRIBUNAL MAY D EEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPLICATION. 3. AFTER CONSIDERING THE CIRCUMSTANCES EXISTING IN THE CASE AND THE SUBMISSIONS OF THE ASSESSEE, WE ARE SATISFIED THAT THE REASONABLE CAUSE EXISTED FOR FAILURE ON THE PART OF THE ASSESSEE TO APPEAR BEFORE THE ITAT M.A. NO. 317/AHD/19 [M/S. MUNJAL AUTO INDUSTRIES LTD. VS. ITO] A.Y. 2003-04 - 4 - ON THE DATE OF HEARING. ACCORDINGLY, WE RECALL THE ORDER OF THE ITAT AHMEDABAD BENCH 'D' PASSED IN ITA NO. 784/AHD/2013 DATED 29/03/2019 (SUPRA) AND DIRECT THE REGISTRY TO LIST THE APPEAL FOR FRESH HEARING ON 20/04/2020 FIXED IN CONSULTATION WITH BOTH THE SIDES PRESENT. THEREFORE, FORMAL NOTICE OF HEARING IS DISPENSED WITH THE CONS ENT OF BOTH PARTIES. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 27/01/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 27/01/2020