RECKITT PIRMAL P. LTD, MUMBAI v. DCIT 8(3), MUMBAI

ITA 2345/MUM/2009 | 2003-2004
Pronouncement Date: 24-03-2010 | Result: Allowed

Appeal Details

RSA Number 234519914 RSA 2009
Assessee PAN AAACR5896G
Bench Mumbai
Appeal Number ITA 2345/MUM/2009
Duration Of Justice 11 month(s) 11 day(s)
Appellant RECKITT PIRMAL P. LTD, MUMBAI
Respondent DCIT 8(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 24-03-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 24-03-2010
Date Of Final Hearing 04-03-2010
Next Hearing Date 04-03-2010
Assessment Year 2003-2004
Appeal Filed On 13-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI. R.K. GUPTA (J.M.) AND SHRI. B. RAMAKOT AIAH (A.M.) ITA NO.2499/MUM/2009 ASSESSMENT YEAR : 1998-1999 ITA NO.2500/MUM/2009 ASSESSMENT YEAR : 2000-2001 ITA NO.2345/MUM/2009 ASSESSMENT YEAR : 2003-2004 ITA NO.6830/MUM/2008 ASSESSMENT YEAR : 2003-2004 RECKITT PIRAMAL PVT. LTD. REGISTERED OFFICE 8 TH FLR. B WING MARWAH CENTRE KRISHNALAL MARWAH MARG SAKI NAKA ANDHERI (E) MUMBAI 400 072. PAN : AAACR5896G VS. DCIT 8(3) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ASHWINI KUMAR RESPONDENT BY : SHRI R.N. JHA (CIT D.R.) O R D E R PER BENCH OUT OF FOUR APPEALS BY THE ASSESSEE THREE APPEALS ARE AGAINST ORDERS OF THE CIT(A) RELATING TO ASSESSMENT YEARS 1998-99 2003-04 AND ONE APPEAL AGAINST THE ORDER PASSED U/S.263 WHICH IS RELA TING TO ASSESSMENT YEAR 2000-01. 2. APPEALS IN ITA NO.2499/MUM/09 ITA NO.6830/MUM/0 8 AND ITA NO.2500/MUM/09 ARE TIME BARRED FOR 838 DAYS. 3 FIRST WE WILL TAKE UP THE CONDONATION APPLICATIO N IN RESPECT OF THESE APPEALS WHICH ARE FILED LATE. SINCE FACTS ARE SIM ILAR IN FILING THE APPEALS 2 LATE THEREFORE THEY ARE DISPOSED OFF TOGETHER. S EPARATE AFFIDAVITS HAVE BEEN FILED IN RESPECT OF DELAY IN FILING OF THE RESPECTI VE APPEALS. 4. WE WILL DISCUSS THE FACTS IN THE APPEAL IN ITA N O.2499/MUM/09 RELATING TO ASSESSMENT YEAR 1998-1999 AND THE OUTCO ME OF THE SAME WILL BE APPLICABLE TO OTHER CASES ALSO AS THE FACTS ARE SIM ILAR. 5. THE AFFIDAVIT HAS BEEN FILED BY SHRI CHANDER MOH AN SETHI ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY. THE CONTENTS O F THE AFFIDAVIT BY WHICH THE REASONS IN FILING THE APPEALS LATE ARE EXPLAINE D AS UNDER: 1. THAT I WAS APPOINTED AS A DIRECTOR OF THE COMPA NY ON 21.01.2002 AND AS SUCH I AM WELL CONVERSANT WITH T HE FACTS AND DEPOSED BELOW. 2. THAT THE COMPANY WAS FORMED AS A JOINT VENTURE BETWEEN RECKITT & COLMAN INDIA LTD.(NOW RECKITT BEN CKISER INDIA LTD.) AND NICHOLAS PIRAMAL INDIA LTD. DURING THE YEAR ENDED 31.03.1998 TO MARKET THE OVER THE COUNTER (OT C) PHARMACEUTICALL PRODUCTS WITH REGISTERED OFFICE AT 100 CENTRE POINT DR AMBEDKAR RD. PAREL MUMBAI 400 012. 3. THAT THE COMPANY CARRIED ON THE BUSINESS OF OTC DRUGS AND COSMETICS UP TO JUNE 2001 TILL WHICH TIME THE TAX MATTERS WERE ATTENDED BY THEN GROUP COMPANY M/S. PI RAMAL ENTERPRISES LTD. THEREAFTER THE COMPANY SHIFTED IT S REGISTERED OFFICE TO NO.107 11 NIRMAN KENDRA 1 ST FLR. DR. E.MOSES RD. MAHALAXMI MUMBAI 400 011. 4. THAT THE COMPANY HAS THEREAFTER FROM 25.10.2004 RELOCATED ITS REGISTERED OFFICE TO IS PRESENT ADDRE SS AT 8 TH FLR. B WING MARWAH CENTRE KRISHNALAL MARWAH MARG SAKI N AKA ANDHERI (E) MUMBAI 400 072. 5. THAT AFTER THE CESSATION OF OPERATIONS OF THE C OMPANY IN JUNE 2001 THE COMPANY DID NOT HAVE ANY EMPLOYE E. 6. THAT THE ASSESSMENT OF THE ASSESSMENT YEAR 1998 -99 WAS MADE VIDE ORDER DATED 12.04.2000 BY JCIT SPECI AL RANGE 47 MUMBAI. 7. THAT AN ORDER LEVYING PENALTY U/S.271(1)(C) OF RS.3 11 15 000/- WAS PASSED BY THE ACIT RNGE-7(2) MUMBAI VIDE HIS ORDER DATED 30.03.2005. 8. THAT AN APPEAL AGAINST THE SAID ORDER OF PENALT Y U/S.271(1)(C) WAS PREFERRED BEFORE CIT(A)-VII MUMB AI VIDE APPEAL DATED 04.05.2005. 3 9. THAT THE SAID APPELLATE ORDER WAS NOT SERVED ON THE COMPANY. 10. THAT THERE BEING NO ORDER SERVED ON THE COMPANY AND THERE BEING NO PERSON AVAILABLE TO ATTEND TO TAX MA TTERS APPEAL TO THE HONBLE INCOME TAX APPELLATE TRIBUNAL (ITAT) COULD NOT BE FILED BY THE COMPANY AGAINST THE ORDER OF CIT(A) -VII MUMBAI ORDER DATED 24.11.2005 ON THE BASIS OF WHICH THE PR ESCRIBED TIME LIMIT EXPIRED ON 23.01.2006. 11. THAT IN THE MEANTIME THE JURISDICTION OF THE C OMPANY HAS BEEN SHIFTED FROM CIT RNGE-7(2) TO DCIT RANGE 8 (3). 12 . THAT THE COMPANY HAD LATER ENTRUSTED THE RESPONSIBILITY OF ATTENDING THE TAX MATTER TO ONE M R S.N. KANNAN HEAD OF RECKITT BENCKISER INDIA LTD. WHO HA S JOINED RECENTLY AND BEING NOW SEIZED OF THE PENDING TAX MA TTERS OF THE COMPANY HAS COMPILED THE NECESSARY RECORDS. 13. THAT ON BEING ASKED BY DCIT-RANGE-8(3) FOR PAYM ENT OF ARREARS THE COMPANY BECAME WHICH BASIS THE DEMA NDS WERE MADE. 14. THAT ON BEING REQUESTED THE CIT(A)-VII MUMBAI HAD PROVIDED US WITH CERTIFIED TRUE COPY OF THE ORDER D ATED 24.11.2005 ON 05.03.2009. 15. THAT ON BEING PROVIDED WITH THE CERTIFIED TRUE COPY OF THE ORDER THE COMPANY HAS PREFERRED THIS APPEAL BE FORE THE HONBLE ITAT. 16. THAT THE COMPANY WAS PREVENTED BY SUFFICIENT CA USE IN VIEW OF THE CIRCUMSTANCES WHICH WERE BEYOND THE CONTROL AND MANAGEMENT OF THE COMPANY. 17. THAT THE HONBLE ITAT MAY BE GRACIOUSLY PLEASED TO CONDONE THE DELAY IN FILING THE APPEAL TO THE MEET THE ENDS OF JUSTICE. 6. AFTER GOING THROUGH THESE CONTENTS IT IS FOUND THAT THERE WAS A REASONABLE CAUSE IN FILING THE APPEAL LATE BEFORE T HE TRIBUNAL. FROM THE CONTENTS OF THE AFFIDAVIT REPRODUCED ABOVE PROVED T HAT THERE WAS A BONAFIDE INTENTION IN FILING THE APPEALS LATE BEFORE THE TRI BUNAL. THE LD DR HAS ALSO STATED THAT THE CONDONATION APPLICATION CAN BE DISP OSED OFF ON MERIT AFTER TAKING INTO CONSIDERATION THE FACTS AND OTHER MATER IALS ON RECORD. 4 6.1 THE HONBLE SUPREME COURT IN THE CASE OF MST. K ATIJI AND OTHERS VS. COLLECTOR LAND ACQUISITION (167 ITR 471) HAS OBSER VED THAT; 'WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY.' 7. IN THE PRESENT CASE AS STATED ABOVE THAT THERE WAS REASONABLE CAUSE IN FILING THE APPEALS LATE. ALL THE EMPLOYEES WER E LEFT AND THE MANAGER WHO WAS ASSIGNED TO WORK WAS ALSO NOT DOING THE WORK PR OPERLY. AFTER KNOWING ALL THESE FACTS THE DIRECTOR TOOK UP THE MATTER HI MSELF AND IMMEDIATELY THEREAFTER FILED THE RESPECTIVE APPEALS BEFORE THE TRIBUNAL. 8. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN VIEW OF THE OBSERVATIONS OF THE HONBLE APEX COURT WE HOLD THA T THE DELAY IN FILING THE APPEALS WAS NOT ON ACCOUNT OF DELIBERATE DELAY. T HE INTENTION OF THE ASSESSEE WAS BONAFIDE AND THEREFORE THERE WAS A RE ASONABLE CAUSE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE CONDONE THE DE LAY IN FILING THE APPEAL LATE. 9. SIMILAR FACTS ARE INVOLVED IN FILING THE APPEALS LATE IN RESPECT OF APPEALS IN ITA NO.6830/MUM/08 FOR ASSESSMENT YEAR 2 003-04 AND IN APPEAL IN ITA NO.2500/MUM/09 PASSED U/S 263 RELATIN G TO ASSESSMENT YEAR 2000-01. FOR THE SAME REASONING THE DELAY I N FILING THESE APPEALS LATE ARE ALSO CONDONED. 10. NOW APPEALS OF THE ASSESSEE ARE DISPOSED OFF I N THE FOLLOWING MANNER: 11. FIRST WE WILL TAKE UP APPEAL IN ITA NO.6830/ MUM/08 FOR ASSESSMENT YEAR 2003-04. 12. THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S.1 44 AS NONE COULD APPEAR BEFORE THE ASSESSING OFFICER. THE CIT(A) H AS ALSO CONFIRMED THE ORDER OF THE ASSESSING OFFICER FOR THE REASON THAT THE ASSESSEE HAS NOT 5 COOPERATED. THE ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS BEFORE CIT(A) COULD NOT BE ATTENDED BY THE ASSESSEE FOR THE REASON THAT ASSESSEE HAS CLOSE DOWN ITS OFFICE AND ALL THE EMPL OYEES WERE LEFT AS EXPLAINED IN THE AFFIDAVIT FILED IN RESPECT TO COND ONATION OF DELAY IN FILING APPEALS LATE BEFORE THE TRIBUNAL CONTENTS OF WHICH ARE ALREADY REPRODUCED SOMEWHERE ABOVE IN THIS ORDER. AFTER TAKING INTO CONSIDERATION THESE FACTS WE ARE OF THE VIEW THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER AFTER AFFORDING REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12.1 THE LD COUNSEL OF THE ASSESSEE HAS UNDERTAKEN DURING THE APPELLATE PROCEEDING HERE BEFORE THE TRIBUNAL THAT THESE ASSE SSES SHALL COOPERATE WITH THE DEPARTMENT IF THE MATTER IS RESTORED TO THE FI LE OF THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER. 13. NOW WE WILL TAKE THE APPEAL IN ITA NO.2345/MUM /09 RELATING TO PENALTY U/S.271(1)(C) FOR ASSESSMENT YEAR 2003-04. 14. SINCE THE QUANTUM MATTER HAS BEEN RESTORED TO T HE FILE OF THE ASSESSING OFFICER; THEREFORE THE PENALTY ORDER IS ALSO LIABLE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH O RDER AFTER COMPLETING RE- ASSESSMENT AS DIRECTED. ACCORDINGLY THE PENALTY M ATTER IS ALSO SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH O RDER IN VIEW OF THE PROVISIONS OF THE LAW AND AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. NOW WE WILL TAKE UP THE APPEAL IN ITA NO.2500/ MUM/09 FOR ASSESSMENT YEAR 2000-01 WHICH IS AGAINST ORDER P ASSED U/S.263 BY THE CIT DATED 25.01.2005. 16. THE CIT AFTER GOING THROUGH THE ASSESSMENT RECO RD OF ASSESSMENT YEAR 2000-01 FOUND THAT WHILE COMPLETING ASSESSMENT U/S. 143(3) THE ASSESSING OFFICER HAS NOT MADE PROPER INQUIRIES/VERIFICATION OF CLAIM MADE IN THE 6 ACCOUNTS/RETURN/COMPUTATION. ACCORDINGLY SHOW C AUSE NOTICE DATED 29.09.2004 ISSUED TO THE ASSESSEE FOR TAKING ACTION U/S 263. IN THE SHOW CAUSE NOTICE THE DISCREPANCY IN RESPECT TO OPENING STOCK AS WELL AS CLOSING STOCK WERE SHOWN. IT IS FURTHER MENTIONED THAT N O PROPER INQUIRIES HAVE BEEN MADE BY THE ASSESSING OFFICER IN REGARD TO APP ARENT DISCREPANCY NOTICED IN THE QUANTITATIVE DETAILS OF TOILETRIES I NVENTORIES. THEREAFTER DETAILED REPLY WAS FILED BEFORE THE CIT. HOWEVER L D CIT WAS NOT SATISFIED WITH THE REPLY FILED BEFORE HIM; ACCORDINGLY HE SE T ASIDE THE ORDER OF THE ASSESSING OFFICER BY HOLDING THAT THE SAME IS PREJU DICIAL TO THE INTEREST OF REVENUE AND THEREFORE THE ORDER OF THE ASSESSING OF FICER IS ERRONEOUS. THE ASSESSING OFFICER WAS DIRECTED TO TAX THE VALUE OF 1737.45 MT OF GOODS LESS 5% ON ACCOUNT OF BROKERAGE AS UNACCOUNTED INVESTMEN T IN PURCHASES. THE ASSESSING OFFICER FURTHER DIRECTED TO MODIFY THE OR DER PASSED ORIGINALLY U/S.143(3) IN THE LIGHT OF THE DISCUSSION IN THE O RDER PASSED U/S 263 BY THE CIT. NOW THE ASSESSEE IS IN THE APPEAL BEFORE THE TRIBUNAL. 17. THE COUNSEL OF THE ASSESSEE WHO APPEARED BEFO RE TRIBUNAL SUBMITTED THAT DETAILED INQUIRIES WERE MADE BY THE ASSESSING OFFICER IN RESPECT TO THE QUANTITATIVE DETAILS OF TOILETRIES INVENTORIES. THE ATTENTION OF THE BENCH WAS DRAWN ON THE COPY OF ASSESSMENT ORDER PASSED U/ S 143(3) ORIGINALLY. ATTENTION OF THE BENCH WAS ALSO DRAWN ON THE COPY O F QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER AND COPY OF THE REPLY THER EOF FILED ON BEHALF OF THE ASSESSEE. COPY OF THE SHOW CAUSE NOTICE AND COPY OF REPLY FILED BEFORE THE ASSESSING OFFICER ARE PLACED AT PGS.3 TO 10 OF THE PAPER BOOK. IT WAS FURTHER SUBMITTED THAT THEREAFTER THE ASSESSING OFFICER VI DE ORDER DATED 24.03.2003 REQUIRED THE ASSESSEE TO FILE SOME FURTHER DETAILS AND THE SAME WERE FILED WHICH ARE PLACED IN THE PAPER BOOK AT PAGES 13 TO 2 0. ACCORDINGLY IT WAS SUBMITTED THAT ASSESSING OFFICER HAS VERIFIED THE C LAIM IN RESPECT TO QUANTITATIVE DETAILS OF TOILETRIES AND THEN ONLY HA S ACCEPTED THE PURCHASE SALE AND THE CLOSING STOCK SHOWN BY ASSESSEE. NO W THE CIT BY HIS ORDER WANTS TO IMPOSE HIS OWN FINDINGS WHICH ARE NOT PERM ISSIBLE UNDER THE LAW. RELIANCE WAS PLACED ON THE DECISION OF HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT VS. GABRIEL INDIA LTD. (203 ITR 108). THE LD DR ON THE OTHER 7 HAND SUBMITTED THAT THIS IS NOT A CASE OF CHANGE O F OPINION AS ASSESSING OFFICER HAS GIVEN WRONG FINDINGS. 17.1 IN REPLY THE LD COUNSEL OF THE ASSESSEE STATED THAT THE CIT HAS TRAVELLED BEYOND SHOW CAUSE NOTICE ISSUED AND THERE FORE THE SAME WAS NOT PERMISSIBLE. IT WAS FURTHER SUBMITTED THAT HOW THE ORDER OF THE ASSESSING OFFICER IS WRONG HAS NOT BEEN POINT OUT EITHER BY L D CIT OR BY LD DR. THE ASSESSING OFFICER HAS TAKEN A POSSIBLE VIEW; THEREF ORE THE ORDER OF LD CIT IS LEVIABLE TO BE QUASHED. 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDE RED THE SAME. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERI AL ON RECORD WE FIND THAT LEARNED CIT HAS TRAVELLED BEYOND HIS JURISDICT ION. WHILE PASSING ORDER U/S.263 INSTEAD OF SETTING ASIDE THE ASSESSMENT OR DER THE CIT HAS DIRECTED THE ASSESSING OFFICER TO TAX THE VALUE OF 1737.45 M T OF GOODS LESS 5% ON ACCOUNT OF BROKERAGE. IT SHOWS THAT CIT WAS PREDE TERMINED TO DIRECT THE ASSESSING OFFICER TO MAKE DISALLOWANCE OR ADDITIONS . THEREFORE FOR THESE REASONS THE ORDER OF CIT IS NOT SUSTAINABLE IN LAW. 18.1 WE FURTHER NOTICED THAT THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT U/S.143(3) HAVE MADE PROPER INQUIRIES IN RESPECT OF QUANTITATIVE DETAILS OF TOILETRIES. THE FIGURE MENTIONED IN T HE SHOW CAUSE NOTICE ISSUED BY THE CIT ARE THE SAME FIGURE MENTIONED IN THE SHO W CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPLET ING ASSESSMENT. THE ORIGINAL SHOW CAUSE NOTICE WAS ISSUED ON 13.03.2003 BY THE ASSESSING OFFICER. THE ASSESSEE HAS FILED THE REPLY VIDE LE TTER DATED 15.03.2003 EXPLAINING THE QUANTITATIVE DETAILS OF INVENTORIES. THE RECONCILED DETAILS WERE ALSO FILED COPIES OF WHICH ARE PLACED IN PAPE R BOOK AT PAGE NO.3 ONWARDS. THEREAFTER ASSESSING OFFICER FURTHER M ADE INQUIRIES VIDE LETTER DATED 24.03.2003 REGARDING VALUE OF OPENING STOCK VALUE OF PURCHASES AND VALUE OF CLOSING STOCK AS ON 31.03.2000. THE ASS ESSEE FILED REPLY DATED 28.03.2003 COPY OF THE SAME IS PLACED AT PAGE NO.13 TO 21. AFTER 8 CONSIDERING ALL THESE DETAILS THEN ONLY THE ASSESSI NG OFFICER HAS ACCEPTED THE PURCHASE SALE AND CLOSING STOCK SHOWN BY THE ASSES SEE. 18.2. AFTER CONSIDERING THE ORDER OF THE ASSESSING OFFICER AND THE ORDER OF THE LEARNED CIT U/S.263 AND TAKING INTO CONSIDERATI ON THE RIVAL SUBMISSIONS WE NOTICED THAT THE ORDER OF LEARNED CIT PASSED U/S .263 CANNOT BE SUSTAINED. THE ASSESSING OFFICER HAS TAKEN A CON SCIOUS VIEW AFTER APPLYING HIS MIND AND AFTER TAKING INTO CONSIDERATION THE RE PLY FILED ON BEHALF OF ASSESSEE. NOW SETTING ASIDE THE ORDER OF ASSESSI NG OFFICER BY LEARNED CIT IN OUR CONSIDERED VIEW IS ON ACCOUNT OF CHANGE OF O PINION. THE VERY QUARRY RAISED BY LEARNED CIT WAS ALSO RAISED BY ASSESSING OFFICER THROUGH HIS QUESTIONNAIRE FOR FILING THE REPLY ON BEHALF OF ASS ESSEE. AS STATED ABOVE THE ASSESSEE HAS FILED DETAILED REPLY AND THE ASSES SING OFFICER HAS EXAMINED THE SAME AND THEN HAS ACCEPTED THE PURCHASES SALES AND CLOSING STOCK SHOWN BY THE ASSESSEE. NOTHING HAS BEEN BROUGHT O N RECORD THAT HOW THE ORDER OF ASSESSING OFFICER IS WRONG. IT IS SETTL ED POSITION IN LAW THAT IF AN AUTHORITY TAKEN A POSSIBLE VIEW THEN MERELY ON ACC OUNT OF CHANGE OF OPINION THAT CANNOT BE HELD AS ERRONEOUS AND THERE FORE PREJUDICIAL TO THE INTEREST OF REVENUE. SINCE THE ASSESSING OFFICER H AS TAKEN A POSSIBLE VIEW THEREFORE WE HOLD THAT LEARNED CIT WAS NOT JUSTIFI ED IN INITIATING PROCEEDING U/S.263. THE ORDER OF LEARNED CIT(A) IS THEREFOR E QUASHED. 19. THE REMAINING APPEAL IN ITA NO.2499/MUM/09 IS R ELATING TO PENALTY OF RS.3 11 15 500/- LEVIED U/S.271(1)(C) FOR ASSES SMENT YEAR 1999-2000. 20. THE ASSESSING OFFICER LEVIED PENALTY ON THE BAS IS OF ORDER OF THE LEARNED CIT(A) BY WHICH THE DISALLOWANCE MADE WAS C ONFIRMED. THE CIT(A) HAS ALSO CONFIRMED THE LEVY OF PENALTY WHILE PASSIN G ORDER EX-PARTE AS NONE APPEARED BEFORE HIM. THIS APPEAL WAS ALSO FILED BELATED. 21. WE HAVE CONDONED THE DELAY IN FILING THE APPEAL LATE BY HOLDING THAT THERE ARE BONAFIDE AND REASONABLE CAUSE. THOUGH T HE LEARNED COUNSEL HAS STATED THAT THE QUANTUM MATTER HAD BEEN ADMITTED BY THE HONBLE HIGH 9 COURT; THEREFORE IN VIEW OF THE DECISION OF 3 RD MEMBER REPORTED IN 91 ITD 237 PENALTY IS NOT LEVIABLE. HOWEVER WE FEEL T HAT MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER AS THE ASSESSI NG OFFICER AS WELL AS LEARNED CIT(A) HAS DECIDED THE ISSUE EX-PARTE WITHOUT AFFOR DING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACC ORDINGLY WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MAT TER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PASSING A FRESH ORDER AFTER G IVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE OR DER ACCORDINGLY. 22. IN THE RESULT APPEAL IN ITA NO.2500/MUM/09 FOR ASSESSMENT YEAR 2000-2001 IS ALLOWED AND THE OTHER APPEALS OF THE A SSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS DAY OF 24 TH MARCH 2010. SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER SD/- (R.K. GUPTA) JUDICIAL MEMBER MUMBAI DATED 24 TH MARCH 2010. JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUMBAI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH D MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI 10 DATE INITIALS 1. DRAFT DICTATED ON 10-03-10 PS 2. DRAFT PLACED BEFORE AUTHOR 12-03-10 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER