ARCH PHYTOCHEMICALS P.LTD, MUMBAI V. ACIT CEN CIR 32, MUMBAI

MA 857/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2018 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 20-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI RAVISH SOOD, JUDICIAL MEMBER M A NO A.Y. APPL IC ANT RESPONDENT 857/MUM/17 (ARISING OUT OF ITA NO.2416/M/12) 2003-04 M/S. ARCH PHYTOCHEMICALS PVT. LTD., H-WING, 4 TH FLOOR, TEX CENTRE, NARAYAN PROPERTIES, CHANDIVALI, ANDHERI (E) MUMBAI [PAN: AACCA8994L] THE ACIT, CENTRAL CIRCLE-32, MUMBAI 858/MUM/17 (ARISING OUT OF ITA NO.2417/M/12) 2005-06 859/MUM/17 (ARISING OUT OF ITA NO.2418/M/12) 2006-07 860/MUM/17 (ARISING OUT OF ITA NO.2419/M/12) 2007-08 APPLICANT BY : SHRI NEELKANTH KHANDELW AL, AR RESPONDENT BY : SHRI RAJEEV GUBGO TRA, DR DATE OF HEARING : 14-06-2019 DATE OF PRONOUNCEMENT : 14-06-2019 O R D E R PER G.S. PANNU, VICE PRESIDENT : THE CAPTIONED MISCELLANEOUS APPLICATIONS HAVE BEEN PREFERRED BY THE ASSESSEE, WHICH HAVE ARISEN OUT OF THE ORDER OF THE TRIBUNAL, DATED 22-05-2017 IN ITA NOS. 2416, 2417 , 2418 & 2419/MUM/2012 FOR THE ASSESSMENT YEARS 2003-04, 2005- 06, 2006-07 & 2007-08, DISMISSING THE APPEALS OF THE AS SESSEE, EX-PARTE IN LIMINE FOR NON-PROSECUTION. 2 MA NOS. 857, 858, 859 & 860/M/17 2. THE LD.REPRESENTATIVE FOR THE ASSESSEE FURNISHED TH E FOLLOWING REASONS FOR NOT ATTENDING THE HEARING, SUPPO RTED BY AN AFFIDAVIT: 1. THE ABOVE APPEAL FOR INCOME-TAX ASSESSMENT YEAR 2003-04 CAME UP FOR HEARING BEFORE THE HONOURABLE TRIBUNAL, 'A' BENCH, MUMBAI ON 22 ND MAY, 2017 AND HAS BEEN DISPOSED OF BY ITS ORDER OF EVEN DATE. THIS IS AN EX- PARTE ORDER WHEREIN THE HONOURABLE TRIBUNAL HAS DIS MISSED THE APPEAL OF THE APPLICANTS FOR NON-APPEARANCE ON THE DATE OF HE ARING. THE ABOVE NAMED APPLICANTS BEG TO PRESENT THIS MISCELLANEOUS APPLICATION TO BRING BEFORE THE HONOURABLE TRIBUNAL CERTAIN MATTERS AND RELEVANT FACTS FOR RESTORATION OF THE APPEAL. 2. (A) THE APPLICANTS HAD APPOINTED MESSRS KAILASH CHAND JAIN & CO, CHARTERED ACCOUNTANTS AS THEIR AUTHORISED REPRESENT ATIVES FOR THE AFORESAID APPEAL. LATER, MESSRS KAILASH CHAND JAIN & CO., CHARTERED ACCOUNTANTS WERE TO BE NO LONGER ASSOCIATED WITH AL L THE PENDING MATTERS OF THE GROUP. ACCORDINGLY, MESSRS KAILASH CHAND JAI N & CO., CHARTERED ACCOUNTANTS, AT THE TIME OF HANDED OVER THE PENDING APPEAL PAPERS INCLUDING OTHER DOCUMENTS, HAD MENTIONED THAT THE A FORESAID APPEAL WAS FIXED FOR HEARING ON 22 ND MAY, 2017. PLEASE FIND ENCLOSED A PHOTO COPY OF LETTER DATED 11.5.2017 OF MESSRS KAILASH CHAND JAIN & CO, CHARTERED ACCOUNTANTS STATING THE AFORESAID FACTS IN THEIR HA NDING OVER LETTER. HOWEVER, THE APPLICANTS INADVERTENTLY, FAILED TO TA KE NOTE THE DATE OF HEARING OF THE AFORESAID APPEAL AND AS A CONSEQUENC E THEREOF, THEY COULD NOT APPEAR ON THE DATE OF HEARING. AS SUCH, THE APP EAL CAME TO BE DISMISSED FOR NON-ATTENDANCE. (B) IT WOULD NOT BE OUT OF PLACE TO MENTION THAT TH E PAPER BOOK WAS NOT FILED BY THE APPLICANTS. IN VIEW OF THE ABOVE, THE ORDER OF THE TRIBUNAL DAT ED 22.05.2017 OUGHT TO BE RECALLED TO GIVE AN OPPORTUNITY TO THE APPLICANT S TO PRESENT THEIR CASE. 3. THE APPLICANTS, IF HAD PRESENTED, WOULD HAVE PUT FORWARD THE FOLLOWING POINTS IN RESPECT OF THE GROUNDS OF APPEAL - 3.1 THE ASSESSING OFFICER BY HIS ORDER DATED 20.12. 2010 PASSED UNDER SECTION 143(3) R.W.S. 153A HAS MADE DISALLOWANCE OF RS 4,95,187 AND RS 2,68,350 ON ACCOUNT OF SALARY AND PROFESSIONAL FEES , RESPECTIVELY. 3.2 THE APPLICANTS SUBMIT THAT IN AN ASSESSMENT COM PLETED UNDER SECTION 153A PURSUANT TO SEARCH CONDUCTED UNDER SECTION 132 , THE UNDISCLOSED INCOME HAS TO BE DETERMINED ON THE BASIS OF EVIDENC E, MATERIALS AND/ OR DOCUMENTS FOUND AS A RESULT OF SEARCH. IN THE CASE ON HAND, THE SAID EXPENSES OUGHT NOT TO HAVE BEEN DISALLOWED INASMUCH AS NO INCRIMINATING 3 MA NOS. 857, 858, 859 & 860/M/17 MATERIALS AND/ OR DOCUMENTS WERE FOUND DURING THE S EARCH WHICH COULD JUSTIFY THE AFORESAID DISALLOWANCE. RELIANCE FOR TH E ABOVE PROPOSITION IS PLACED ON THE DECISION RENDERED BY THE JURISDICTION AL HIGH COURT IN THE CASE OF MURLI AGRO PRODUCTS LIMITED. 4. IN VIEW OF THE ABOVE, THE APPLICANTS PRAY THAT - (A) THE ORDER OF THE TRIBUNAL DATED 22.05.2017 BE RECAL LED TO GIVE AN OPPORTUNITY TO THE APPLICANTS TO PRESENT THEIR CASE AND / OR (B) THE TRIBUNAL MAY GRANT SUCH FURTHER RELIEF AS IT DE EMS FIT. 3. THE LD.DR ALSO HAS NOT RAISED A SERIOUS OBJECTION, IF THE EARLIER ORDER IS RECALLED AND APPEAL IS HEARD ON ME RITS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES A ND PERUSED THE MATERIAL PLACED ON RECORD. FOR THE REASON S ASCRIBED IN THE AFFIDAVIT, WE ARE INCLINED TO ACCEPT THE PLEA OF THE ASSESSEE THAT THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE OF TH E ASSESSEE. THUS, WE HEREBY RECALL OUR ORDER DATED 2 2-05-2017 PASSED IN ITA NOS. 2416 TO 2419/MUM/2012 AND POST TH E APPEALS FOR HEARING ON 29-08-2019 . AS THE AFORESAID DATE OF HEARING OF APPEALS WAS ANNOUNCED IN THE OPEN COURT IN PRESENCE OF BOTH THE COUNSELS, NO SEPARATE NOTICE OF HEARING I S REQUIRED TO BE ISSUED TO THE PARTIES. 5. RESULTANTLY, ALL THE ABOVE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019 SD/- SD/- (RAVISH SOOD) JUDICIAL MEMBER (G.S. PANNU) VICE PRESIDENT MUMBAI, DATE : 14-06-2019 TNMM 4 MA NOS. 857, 858, 859 & 860/M/17 COPY TO : 1) THE APPLICANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI