Appeal details
Counselvise Citation
[2018] 119 COUNSELVISE.COM (IT) 0886 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
11 month(s) 9 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
16-11-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2012-2013
Appeal Filed On
07-12-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 875/MUM/2017 (ITA NO. 3416/MUM/2014) ASSESSMENT YEAR: 2012 - 13 M/S ARCH PHARMA LABS LTD. H WING, 4 TH FLOOR, TEX CENTRE, OFF SAKIVIHAR ROAD, CHANDIVALI, ANDHERI (E), MUMBAI - 400072. VS. DCIT - 32, MUMBAI AAYAKAR BHAVAN, GROUND FLOOR MK ROAD, MUMBAI - 400020. PAN NO. AACCM0306Q APPELLANT RESPONDENT ASSESSEE BY : MR. AJAY SINGH, AR REVENUE B Y : DR. SAURABH DESHPANDE, DR MR. PURUSHOTTAM KASHYAP, CIT DATE OF HEARING : 24/08/2018 DATE OF PRONOUNCEMENT : 16/11/2018 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 31.08.2017 PASSED BY THE ITAT A BENCH MUMBAI (ITA NO. 3416 /MUM/2014) F OR THE ASSESSMENT YEAR (AY) 2012 - 13 . IN PART - I , HERE - IN - BELOW, WE MENTION THE CONTENTION S OF THE LD. COUNSEL OF THE APPLICANT, IN PART - II, THE SUBMISSIONS OF THE LD. DR AND IN PART - III, THE REASONS FOR OUR DECISION. M/S ARCH PHARMA LABS LTD. M.A. NO. 875/MUM/2017 2 I 2. THE CONTENTIONS OF THE LD. COUNSEL FOLLOW THE WRITTEN SUBMISSION DATED 29.11.2017 FILED BY THE APPLICANT BEFORE THE TR IBUNAL. THEREFORE, WE REFER BELOW THE SAID WRITTEN SUBMISSION. IT IS STATED THAT THE APPLICANT HAD FILED A P APER B OOK (P/B) RUNNING PAGES NUMBER 01 TO 325 BEFORE THE TRIBUNAL AND DURING THE COURSE OF HEARING SHRI JANAK C. THACKER, FINANCIAL ADVISOR OF THE APPLICANT - COMPANY WAS PRESENT IN THE COURT ROOM ALONG WITH THE ADVOCATE SHRI AJAY R. SINGH ON 06.06.2017. IT IS FURTHER STATED THAT AT THE TIME OF HEARING, THE ADVOCATE FOR THE APPLICANT HAD BRIEFED THE BASIC FACT OF THE CASE AND EXPLAINED THE ISSUE INVOL VED IN THE APPEAL. IT IS STATED THAT DURING THE HEARING, THE HONBLE JUDICIAL MEMBER QUESTIONED THE ASSESSEES REPRESENTATIVE IN REGARD TO THE DETAILS FILED BEFORE THE ASSESSING OFFICER (AO) AND COMMISSIONER OF INCOME TAX (APPEALS) [IN SHORT CIT(A) ], CON SIDERING THE INDEX OF THE PAPER BOOK. IT IS ALSO STATED THAT FURTHER QUERY WAS RAISED ON THE ISSUE OF PROPER OPPORTUNITY OF HEARING PROVIDED BY THE AO. IT IS STATED THAT THE APPLICANTS REPRESENTATIVE EXPLAINED THE BENCH AS TO WHY COMPLETE DETAILS AND EXPL ANATION COULD NOT BE FURNISHED BEFORE THE AO. IT IS STATED THAT SHOW - CAUSE NOTICE U/S 221(1) DATED 21.01.2013 WAS ISSUED ASK ING THE ASSESSEE TO APPEAR ON 28.01.2013 WHICH WAS SERVED TO THE ASSESSEE ON 31.01.2013. HOWEVER, MEANWHILE THE ORDER DATED 29.01.2013 WAS PASSED IMPOSING PENALTY. IT IS FURTHER STATED THAT THE ATTENTION OF THE BENCH WAS BROUGHT TO PAGE NUMBER 314 - 318 OF T HE P/B TO SHOW THAT IN FACT ON 01.02.2013 THE ASSESSEE HAD APPEARED BEFORE THE AO REQUESTING TO LIFT THE ATTACHMENTS AND ON ASSESSEES REQUEST AND EXPLANATION, THE ATTACHMENTS WERE LIFTED ACCEPTING GENUINE FINANCIAL M/S ARCH PHARMA LABS LTD. M.A. NO. 875/MUM/2017 3 DIFFICULTIES. ALSO IT IS STATED THAT THE HONBLE JUDICIAL MEMBER, REFERRING TO THE PROVISIONS OF SECTION 221 OF THE ACT, QUESTIONED THE ADVOCATE AS TO WHETHER THE MATTER CAN BE SET ASIDE BEFORE THE AO TO RECONSIDER THE COMPLETE DETAILS AND THEREAFTER PASS A SPEAKING ORDER ON VARIOUS CONTENTIONS RAISED BY THE ASSESSEE AFTER APPRECIATING THE COMPLETE FACTS WHICH WAS ORIGINALLY NOT ON AOS RECORD. IT IS STATED THAT THE REPRESENTATIVE, AFTER TAKING INSTRUCTIONS FROM SHRI JANAK THACKER AGREED FOR SET - ASIDE OF THE MATTER BEFORE THE AO WITH A DIRECTION THAT THE MATTER WILL BE DECIDED AFRESH AFTER PROPER OPPORTUNITY OF HEARING. ALSO IT IS STATED THAT THE REPRESENTATIVE WAS ASKED NOT TO ARGUE FURTHER AND THE DEPARTMENTAL REPRESENTATIVE WAS QUESTIONED AS REGARDS TO SETTING ASIDE OF THE MATTER. IT IS STATED THAT THE DR RESTRICTED HIS ARGUMENT AND MADE HIS SUBMISSION ONLY ON THE POINT ON SETTING ASIDE OF THE MATTER. FURTHER IT IS STATED THAT THE APPLICANT - REPRESENTATIVE DID NOT ARGUE ANY FURTHER AS TO THE MERIT OF THE CASE NOR CITED ANY DECISION NOR EXPLAINE D WHY THE WORKING MADE BY THE LD. CIT(A) IS INCORRECT NOR DID HE REFER TO DOCUMENTS ENCLOSED IN THE PAPER BOOK TO SHOW PAUCITY OF FUNDS AND GENUINE FINANCIAL DIFFICULTIES. IT IS STATED THAT THE BENCH SAID THAT THE MATTER WOULD BE SET ASIDE BEFORE THE AO FO R FRESH ADJUDICATION AND THE HEARING WAS CONCLUDED. IT IS STATED THAT DUE TO THE DIRECTION OF THE BENCH, THE MATTER WAS NOT ARGUED ON MERIT AND IT WAS AGREED IN THE OPEN C OURT THAT THE MATTER WOULD BE SET ASIDE TO THE FILE OF THE AO. IT IS FINALLY SUBMITTE D THAT IN SUCH A SITUATION, IT WILL BE UNFAIR FOR THE APPLICANT - ASSESSEE, AS NO PROPER OPPORTUNITY WAS PROVIDED FOR ARGUING THE MATTER ON MERIT AND THEREFORE, SUBMITTED THAT THE BENCH MAY RECALL THE MATTER AND ALLOW PROPER OPPORTUNITY OF HEARING OF THE CAS E ON M/S ARCH PHARMA LABS LTD. M.A. NO. 875/MUM/2017 4 MERIT. AN AFFIDAVIT DATED 06.12.2017 WAS ALSO FILED BY SHRI JANAK C. THACKER REITERATING THE ABOVE SUBMISSIONS. II 3. PER CONTRA , THE LD. DR FILES A REPLY FROM SHRI PURUSHOTTAM KASHYAP, COMMISSIONER OF INCOME TAX (CIT) WHO APPEARED ON BEHALF OF THE REVENUE ON 06.06.2017. IN HIS WRITTEN SUBMISSION DATED 05.07.2018, SHRI KASHYAP MENTIONS THAT WHILE PERUSING THE CONTENTS OF THE MA FIL E, IT IS SEEN THAT THE COUNSEL FOR ASSESSEE HAS SUGGESTED THAT ON THE DATE OF HEARING , THE DR HAS AGREED FOR SETTING ASIDE OF THE MATTER TO THE ASSESSING OFFICER FOR FRESH HEARING. IT IS CLARIFIED BY SHRI KASHYAP THAT ALL ALONG HE ARGUED FOR UPHOLDING THE ORDER OF THE LD. CIT(A) AND AT NO STAGE, HE AGREED FOR CONSIDERATION OF THE CASE BEING REFERRED TO THE AO. IT MAY BE MENTIONED HERE THAT ON THE REQUEST OF THE BENCH CONVEYED THROUGH THE LD. DR VIDE ORDER SHEET ENTRY DATED 06.07.2018 SHRI KASHYAP APPEARED BEFORE THE BENCH ON 24.08.2018. ALSO SHRI KASHYAP FILED ANOTHER WRITTEN SUBMISSION DATED 28.08.2018 STATING THAT WHILE APPEARING BEFORE THE BENCH ON 24.08.2018 DURING THE COURSE OF HEARING ON THE MA, HE REITERATED THE STAND TAKEN VIDE LETTER DATED 05.07.2018. IT IS STATED THAT, HOWEVER, THE BENCH, AFTER GOING THROUGH THE REGISTER (LOG BOOK) OF COURT WAS OF THE OPINION THAT THE MATTER NEEDED TO BE SET ASIDE TO THE AO. SHRI KASHYAP MENTIONS THAT, IF THE MA IS TO BE ALLOWED, THEN IT WILL BE TANTAMOUNT TO REVIEW OF THE BENCHS OWN ORDER, (RATHER TAKING A DIAMETRICALLY OPPOSITE VIEW) BECAUSE IN PARA 7 OF THE ORDER, THE BENCH HAS DISCUSSED THE MERITS OF THE CASE AS ARGUED BY THE ASSESSEE IN DETAIL, INCLUDING THE CASE LAW CITED, AND HAS SUBSEQ UENTLY UPHELD THE PENALTY LEVIED BY THE ASSESSEE M/S ARCH PHARMA LABS LTD. M.A. NO. 875/MUM/2017 5 BY DISCUSSING THE FACTS REGARDING FINANCIALS OF THE ASSESSEE, THE ANALYSIS OF STATUTE (SPECIFICALLY SECTION 140A, WHICH DEALS WITH PAYMENT OF SELF ASSESSMENT TAX) AND THE JUDICIAL PRECEDENT AVAILABLE. IT IS STATED THAT AFTER A THOROUGH ANALYSIS AND DISCUSSION, IT WOULD BE HIGHLY UNJUST, UNFAIR AND JUDICIALLY UNPRECEDENTED, IF THE CASE IS SET ASIDE TO THE AO FOR FRESH EXAMINATION OF FACTS, CONSIDERING THAT THE TRIBUNAL HAS IN ITS ORDER CONSIDERED ALL THE FACTS AND HAS COME TO A FAIR CONCLUSION OF UPHOLDING PENALTY. FINALLY IT IS STATED THAT IN THE LIGHT OF THE ABOVE ARGUMENT, THERE IS NO APPARENT ERROR IN THE TRIBUNALS ORDER AND THEREFORE, THE MA OF ASSESSEE BE SUMMARILY DISMISSED. III 4. WE HAVE HEARD TH E RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT THE FOLLOWING MISTAKE HAS CREPT INTO THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. IN THE WRITTEN SUBMISSION FILED BY THE ASSESSEE BEFORE THE LD. CIT(A), IT IS STATED THAT THE AO ISSUED SHOW - CAUSE NOTICE U/S 221(1) DATED 21.01.2013 WHICH WAS SERVED ON THE ASSESSEE ON 31.01.20 13. HOWEVER, THE AO PASSED AN ORDER DATED 29.01.2013 IMPOSING A PENALTY OF RS.81,00,000/ - . THUS IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT NO OPPORTUNITY, WH ATSOEVER WAS MADE AVAILABLE TO THE ASSESSEE TO EXPLAIN CAUSE FOR DEFAULT IN MAKING THE PAYMENT OF SELF - ASSESSMENT TAX. THE ABOVE FACTS ARE AT PAGE 319 OF THE P/B FILED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE APPLICANT HAS REITERATED THE ABOVE FACTS IN T HE AFFIDAVIT DATED 06.12.2017 (PARA 8) BY SHRI JANAK C. THACKER, FINANCIAL ADVISOR OF THE ASSESSEE - COMPANY. M/S ARCH PHARMA LABS LTD. M.A. NO. 875/MUM/2017 6 THE ABOVE FACTS ARE ALSO SUPPORTED BY THE ORDER U/S 221(1) DATED 29.01.2013 PASSED BY THE AO. THE AO HAS MENTIONED THAT A SHOW - CAUSE NOTICE U/S 22 1(1) DATED 21.01.2013 WAS ISSUED AND SERVED ON THE ASSESSEE FIXING THE CASE FOR HEARING ON 28.01.2013. IN THE ABOVE ORDER, THE AO HAS NOT MENTIONED THE DATE ON WHICH THE ABOVE SHOW CAUSE NOTICE WAS RECEIVED BY THE ASSESSEE. WE ARE OF THE CONSIDERED VIEW THAT A MISTAKE HAS CREPT INTO THE IMPUGNED ORDER OF THE TRIBUNAL BY NOT CONSIDERING THE ABOVE FACTS CONTAINED AT PAGE 319 OF THE P/B . THEREFORE, WE RECALL OUR IMPUGNED ORDER AND SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE A DE NOVO ORDER AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. 5. IN THE RESULT, THE MA IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 16/11/2018. SD/ - SD/ - (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 16/11/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI
