ASSISTANT COMMISSIONER OF INCOME TAX 9(2)(2), MUMBAI V. CIRON DRUGS & PHARMACEUTICALS P.LTD, MUMBAI

MA 890/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6655 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJAY C GOSALIA
• Assessee Lawyers: M C OMI NINGSHEN
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 K IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI C.N PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 ASSESSMENT YEAR 2009 - 10 M/S. CIRON DRUGS & PHARMACEUTICALS P. LTD., 6 TH FLOOR, ALPHA APARTMENTS, M.G. ROAD, VILE PARLE (E), MUMBAI - 400057 PAN AABCC0873D V. ACIT 9(2)(2) , MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI. AJAY C. GOSALIA RESPONDENT BY MR. M.C. OMI. NINGSHEN (DR) DATE OF HEARING : 11 - 05 - 2018 DATE OF PRONOUNCEMENT : 11 - 05 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF AN EX - PAR TE ORDER DATED 01 - 09 - 2017 IN ITA NO. 973/MUM/2017 FOR ASSESSMENT YEAR 2009 - 10 PASSED BY THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALL ED THE TRIBUNAL) . IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS PREJUDICE D BY PASSING OF THE SAID APPELLATE ORDER BY THE TRIBUNAL ON 01.09.2017 FOR WHICH HEARING WAS CONCLUDED BY TRIBUNAL ON 22.08.2017 WHEREIN THERE WAS NO REPRESENTATION FROM THE SIDE OF THE ASSESSEE AND THE TRIBUNAL PASSED THE SAID EX - PARTE ORDER DATED 01 - 09 - 2017 WITHOUT MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 HEARING THE ASSESSEE. I T IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE R EVENUE HAD FILED SAID APPEAL IN ITA NO. 973/MUM/2017 FOR AY 2009 - 10 AND NO NOTICE OF HEARIN G WAS SERVED ON THE ASSESSEE AND NO OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE BY THE TRIBUNAL BEFORE PASSING ORDER ON 01 - 09 - 2017 WHICH LED TO BREACH OF PRINCIPLES OF NATURAL JUSTICE. IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT EVEN SERVED WITH THE G ROUNDS OF APPEALS FILED BY THE R EVENUE IN ITS APPEAL . IT WAS SUBMITTED THAT THE ASSESSEE WAS ALSO NOT AWARE ABOUT TH E FILING OF THIS APPEAL BY THE R EVENUE TO WHICH IT HAD NO KNOWLEDGE AND HENCE THE ASSESSEE WAS DENIED OPPORTUNITY OF FILING CROSS OBJECTIONS. IT WAS ALSO SUBMITTED THAT ASSESSEE HAS ALSO FILED ITS APPEAL IN ITA NO. 787/MUM / 2017 FOR AY 2009 - 10 WHICH WAS FILED ON 03.02.2017 AGAINST THE APPELLATE ORDER OF LEARNED CIT(A) DATED 25.11.2016. THUS IT WAS SUBMITTED THAT GRAVE PREJUDICE HAS BE EN CAUSE D TO THE ASSESSEE BY PASSING OF THIS APPELLATE ORDER EX - PARTE BY TRIBUNAL IN THE ABSENCE OF ASSESSEE AND IN ANY CASE KEEPING IN VIEW THE CROSS APPEAL FILED BY THE ASSESSEE WITH THE TRIBUNAL , THE CROSS - APPEAL S I.E. OF THE R EVENUE IN ITA NO. 973/MU M/2017 AND ASSESSEE S APPEAL IN ITA NO. 787/MUM/2017 RESPECTIVELY FOR AY 2009 - 10 WERE REQUIRED TO BE HEARD TOGETHER AND DISPOSED OF BY THE COMMON ORDER . IT WAS SUBMITTED THAT BY PASSING OF AN APPELLATE ORDER IN THE CASE OF R EVENUE APPEAL IN ITA NO. 973/MU M/2017 , DOCTRINE OF MERGER GOT APPLIED AND LEARNED CIT(A) APPELLATE ORDER GOT MERGE D WITH THE TRIBUNAL ORDER DATED 01 - 09 - 2017 AND HENCE THE ASSESSEE APPEAL CANNOT NOW BE HEARD SEPARATELY AS THE LEARNED CIT(A) APPELLATE ORDER HAS ALREADY GOT MERGED WITH TH E TRIBUNAL ORDER. 2. THE LD. DR FAIRLY SUBMITTED THAT THE REVENUES APPEAL WAS DECIDED BY THE TRIBUNAL EX - PARTE VIDE ORDERS DATED 01 - 09 - 2017 IN THE ABSENCE OF THE ASSESSEE AND KEEPING IN VIEW THAT THERE IS ALSO AN APPEAL FILED BY THE ASSESSEE WHICH WAS PENDING ON THE DATE OF PASSING MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 OF THE ORDER BY THE TRIBUNAL AGAINST THE SAME APPELLATE ORDER OF LEARNED CIT(A) , IT WILL BE FAIR THAT THE APPELLATE ORDER DATED 01 - 09 - 2017 OF THE TRIBUNAL IN ITA NO. 973/MUM/2017 BE RECALLED AS OTHERWISE DOCTRINE OF MERGER HAS LED TO MERGER OF LEARNED CIT(A) APPELL A TE OR DER DATED 25 - 11 - 2016 WITH THE TRIBUNAL ORDER DATED 01 - 09 - 2017 IN R EVENUE S APPEAL AND HENCE ASSESSEE APPEAL COUL D NOT BE HEARD INDEPENDENTLY BECAUSE THE APPELLATE ORDER OF LEARNED CIT(A) DATED 25 - 11 - 2016 GOT MERGED WITH THE TRIBUNAL ORDER DATED 01 - 09 - 2017 . 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD . WE HAVE OBSERVED THAT THE R EVENUE FILED AN APPEAL IN ITA NO. 973/MUM/2017 FOR AY 2009 - 10 AGAINST THE APPELLATE ORDER OF LEARN ED CIT(A) DATED 25 - 11 - 2016 WHICH APPEAL OF THE REVENUE WAS DECIDED BY THE TRIBUNAL VIDE ORDER S DATED 01.09.2017 . THE SAID APPEAL WAS HEARD BY TRIBUNAL EX - PARTE ON 22.08.2017 IN THE ABSENCE OF THE ASSESSEE. THE ASSESSEE ALSO FILED AN APPEAL IN ITA NO. 787/M UM/2017 WHICH WAS FILED ON 03.02.2017 WHICH WAS PENDING FOR DISPOSAL WHEN APPEAL OF THE REVENUE WAS HEARD ON 22 - 08 - 2017 . THE R EVENUE DID NOT BRING IT TO NOTICE OF THE B ENCH AT THE TIME OF HEARING ON 22.08.2017 THAT THERE IS AN ASSESSEE S APPEAL ALSO FOR AY 2009 - 10 AGAINST THE SAME APPELLATE ORDER DAT ED 25 - 11 - 2016 OF LEARNED CIT(A) WHICH IS PENDING FOR DISPOSAL BEFORE THE TRIBUNAL. WE HAVE ALSO OBSERVED FROM THE FILE THAT THE REVENUE FILED THIS APPEAL IN ITA NO. 973/MUM/2017 ON 1 0 /02/2017 FOR WHICH HEARING W AS GIVEN BY THE TRIBUN AL FOR 13.2.2019. THE SAID DATE OF HEARI NG WAS PREPONED TO 22.0 8 .2017 VIDE ORDER SHEET ENTRY DATED 28.07.2017. THE APPEAL WAS HEARD BY THE BENCH ON 22.08.2017 WHICH WAS THE FIRST DATE OF HEARING BEFORE THE TRIBUNAL AS IS EMANATING FROM THE FILE . I T IS ALSO OBSERVED THAT THE NOTICE DATED 31.07.2017 FOR HEARING ON 22.08.2017 WAS ISSUED BUT THERE IS NO RECEIPT OF THE SAID NOTICE OF HEARING ACKNOWLEDGED BY THE ASSESSEE TO HAVE RECEIVED SAID NOTICE DATED 31.07.2017, IN THE FILE . MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 T HE ASSESSEE HAS CATEGORICALLY STATED IN MA APPLICATION SUPPORTED BY AN AFFIDAVIT OF M R . KIRTI TALAKSHI SHAH , D IRECTOR OF THE ASSESSEE COMPANY THAT THEY WERE NO T AWARE OF THE SAID APPEAL BEING FILED BY THE R EVENUE AS NO COMMUNICATION WAS RECEIVED BY THE ASSE SEE AS TO THE FILING OF THE SAID APPEAL BY REVENUE AND THE ASSESSEE WAS NOT HAVING KNOWLED GE OF THE SAID APPEAL BEEN FILED BY THE REVENUE AS NO NOTICE OF HEARING WAS ALSO RECEIVED BY THE ASSESSEE . IT IS ALSO STATED BY LEARNED COUNSEL FOR THE ASSES SEE THAT THEY WERE NOT BEING GIV EN GROUNDS OF APPEAL OF THE REVENUES APPEAL BY THE TRIBUNAL AND HENCE THEY COULD NOT DEFEND THEMSELVES UNDER SUCH CIRCUMSTANCES AS PRINCIPLES OF NATURAL JUSTICE WAS VIOLATED. MOREOVER , THE ASSESSEE APPEAL IN ITA NO. 787/MUM/2017 WA S FILED ON 03 - 02 - 2017 WHICH WAS PENDING FOR DISPOSAL ON 22 - 08 - 2017 WHEN THE APPEAL OF THE REVENUE WAS HEARD EX - PARTE BY THE BENCH . THE REVENUE DID NOT BROUGHT TO THE NOTICE OF THE BENCH ABOUT THE APPEAL OF THE ASSESSEE BEING PENDING FOR THE SAME AY 2009 - 10 AGAINST THE SAME APPELLATE ORDER OF LEARNED CIT(A) DATED 25 - 11 - 2016. THE CROSS APPEALS OUGHT TO HAVE BEEN HEARD TOGETHER . UNDER THE DOCTRINE OF MERGER THE LEARNED CIT(A) APPELLATE ORDER DATED 25 - 11 - 2016 GOT MERGED WITH THE TRIBUNAL ORDER DATED 01 - 09 - 20 17 , WHILE ASSESSEE APPEAL IS PENDING FOR DISPOSAL AGAINST THE SAME APPELLATE ORDER OF LEARNED CIT(A) DATED 25.11.2016 WHEN THE APPEAL OF THE REVENUE WAS DISPOSED OF BY THE TRIBUNAL . UNDER THESE CIRCUMSTANCES KEEPING IN VIEW TOTALITY OF FACTUAL MATRIX OF T HE CASE AND ACCEPTING THE TRUTHFULNESS OF AN AFFIDAVIT FILED BY THE D IRECTOR OF THE ASSESSEE COMPANY , WE RECALL THE ORDER IN ITA NO. 973/MUM / 2017 DATED 01.09.2017 PASSED BY TRIBUNAL FOR AY 2009 - 10 IN REVENUES APPEAL AND WE DIRECT THE R EGISTRY TO FIX THIS APPEAL BEFORE THE REGULAR B ENCH IN REGULAR COURSE AFTER CONSOLIDATING ASSESSEE S APPEAL IN ITA NO. 787/MUM/2017 FOR AY 2009 - 10 WITH REVENUES APPEALS IN ITA NO. 973/MUM/2017 FOR AY 2009 - 10 , WHICH ARE TO BE HEARD TOGETHER AND MA NO. 890/MUM/2017 ARISING OUT OF ITA NO. 973/MUM/2017 DISPOSE D OF AC CORDINGLY. THE R EGISTRY IS DIRECTED TO CONSOLIDATE BOTH THE APPEALS BEFORE REGULAR BENCH AND NOTICES FOR BOTH THE APPEALS BE ISSUED TO ASSESSEE AND REVENUE IN REGULAR COURSE NOTIFYING THE DATE OF HEARING TO BOTH THE PARTIES. WE ORDER ACCORDINGLY. 4. IN TH E RESULT , MA FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 .05.2018 11 .05.2018 SD/ - SD/ - (C.N PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 11 .05.2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI