VALIANT ORGANICS P. LTD, MUMBAI v. ACIT 15(3), MUMBAI

ITA 2498/MUM/2009 | 2006-2007
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 249819914 RSA 2009
Assessee PAN AACCV0024A
Bench Mumbai
Appeal Number ITA 2498/MUM/2009
Duration Of Justice 1 year(s) 1 month(s) 3 day(s)
Appellant VALIANT ORGANICS P. LTD, MUMBAI
Respondent ACIT 15(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 21-05-2010
Date Of Final Hearing 13-05-2010
Next Hearing Date 13-05-2010
Assessment Year 2006-2007
Appeal Filed On 17-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH MUMBAI. BEFORE SHRI R.V.EASWAR SR.VP AND SHRI A.L. GEHLO T AM I.T.A. NOS.2498 & 4258/MUM/2009 (ASSESSMENT YEAR: 2006-07) M/S.VALIANT ORGANICS PVT.LTD. 109 UDYOG KHETRA 1 ST FLOOR MULUND-GOREGAON LINK ROAD MULUND(W) MUMBAI-400 080. PAN:AACCV0024A VS. THE ASSISTANT COMMISSIONER OF INCOME TAX-15(3) MATRU MANDIR NANA CHOWK OPP. BHATIA HOSPITAL TARDEO ROAD MUMBAI-400 034. (APPELLANT) (RESPONDENT) APPELLANT BY : MR. K.SHIVARAM & AJAY SINGH RESPONDENT BY : MR. DEBASHISH CHANDA DR O R D E R PER R.V.EASWAR SENIOR VICE PRESIDENT: THESE ARE TWO APPEALS BY THE ASSESSEE RELATING TO THE ASSESSMENT YEAR 2006- 07. WHILE THE ITA NO.2498/MUM/2009 IS AN APPEAL AGA INST THE ASSESSMENT MADE UNDER SECTION 143(3) ITA NO.4258/MUM/2009 IS AN APPEAL FILED AGAINST THE PE NALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT CONSEQUE NT TO THE ASSESSMENT. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE MANUFA CTURE OF CHEMICALS AND TRADING ACTIVITIES. IT FILED AN AP PEAL AGAINST THE ASSESSMENT ORDER IN WHICH THE BOOK PROFIT WAS BROUG HT TO ASSESSMENT UNDER SECTION 115JB. THE ASSESSEE FILED AN APPEAL AGAINST THE ASSESSMENT. THE CIT(A) ENHANCED THE AS SESSMENT BY RS.37 50 000/- AND ALSO IMPOSED PENALTY UNDER SE CTION 271(1)(C) IN THE AMOUNT OF RS.12 62 250/-. THE AS SESSEE HAS COME IN APPEAL AGAINST BOTH THE ASSESSMENT AS WELL AS THE PENALTY. ITA NOS.2498 & 4258/M/09 2 3. WITH REGARD TO THE APPEAL AGAINST THE ASSESSMENT THE CONTENTION OF THE ASSESSEE IS THAT THE CIT(A) DID N OT AFFORD DUE OPPORTUNITY OF BEING HEARD. IN THIS CONNECTION IT IS SUBMITTED BEFORE US THAT THE FIRST DATE OF HEARING BEFORE THE CIT(A) WAS 12.12.2008 ON WHICH DAY IT WAS ADJOURNED AT THE REQ UEST OF THE ASSESSEE TO 23.12.2008 AND ON THIS DAY THE APPEAL W AS PARTLY HEARD. ON 31.12.2008 THE ASSESSEE FILED A PAPER BOO K BEFORE THE CIT(A) IN SUPPORT OF ITS APPEAL. THE APPEAL WAS HEA RD FOR SOME TIME ON THAT DAY AFTER WHICH THE CIT(A) ISSUED THE NOTICE OF ENHANCEMENT AND POSTED THE APPEAL FOR FURTHER HEARI NG ON 16.01.2009. THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) ON 16.01.2009 AND IT APPEARS THAT NO ORDERS WERE PASSE D ON THE APPEAL ON THAT DATE. HOWEVER ON 20.01.2009 THE ASSE SSEE FILED A LETTER SEEKING ADJOURNMENT OF THE CASE EARLIER FIXE D ON 16.01.2009 ON THE GROUND THAT ITS TECHNICAL DIRECTO R WAS OUT OF TOWN. IT WAS REQUESTED THAT THE APPEAL MAY BE TAKEN UP FOR HEARING ON 15.02.2009. THE CIT(A) SEEMS TO HAVE PO STED THE CASE ON 10 TH FEBRUARY 2009. ON THIS DATE THE ASSESSEE FILED ANOTHER LETTER REITERATING ITS REQUEST FOR ADJOURNI NG THE CASE BY ONE WEEK ON THE GROUND THAT ITS TECHNICAL DIRECTOR WOULD BE COMING BACK ON 15 TH FEBRUARY 2009 AS INFORMED EARLIER. A COPY OF THIS LETTER IS AT PAGE 89 OF THE PAPER BOOK FILE D BY THE ASSESSEE. IT IS SEEN THAT ON THIS LETTER THE CIT(A) HAS MADE THE FOLLOWING REMARK:- APPLICATION IS REJECTED. NO ADJOURNMENT IS TO BE GIVEN AS REASON APPEARS TO BE PRETEXT. THE APPEAL I S GOING TO BE DECIDED ON MERIT. SD/- 10.02.2009 AFTER REJECTING THE ASSESSEES REQUEST THE CIT(A) PROCEEDED TO PASS THE APPELLATE ORDER ON 10.02.2009 ITSELF DISM ISSING THE ASSESSEES APPEAL AND ENHANCING THE ASSESSMENT. IT IS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE T HAT THE CIT(A) UNREASONABLY REJECTED THE ASSESSEES REQUEST AND IN THE ITA NOS.2498 & 4258/M/09 3 PROCESS THE ASSESSEE WAS DENIED AN EFFECTIVE OPPORT UNITY OF PUTTING FORTH ITS SUBMISSIONS IN SUPPORT OF THE APP EAL. A PRAYER IS THEREFORE MADE BY WAY OF AN ADDITIONAL GROUND TH AT THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND HE SHOULD BE DIRECTED TO HEAR THE APPEAL AFRESH IN ACCORDANCE WITH LAW. 4. AFTER HEARING THE RIVAL SUBMISSIONS ON THE ABOVE POINT AND AFTER GOING THROUGH THE RECORD AND MATERIALS PL ACED BEFORE US WE ARE SATISFIED THAT THE ASSESSEE HAS BEEN DEN IED AN EFFECTIVE OPPORTUNITY OF SUPPORTING ITS APPEAL BEFO RE THE CIT(A). THE ASSESSEE ONLY WANTED TIME OF ONE WEEK IN ITS LE TTER DATED 10 TH FEBRUARY 2009 AND THAT TOO ON THE GROUND THAT ITS TECHNICAL DIRECTOR WOULD BE RETURNING TO STATION ON 15.02.2009. THE ENHANCEMENT NOTICE RELATED TO THE CLAIM OF DEPR ECIATION AND IT WAS QUITE POSSIBLE THAT THE ASSESSEE REQUIRED TH E PRESENCE OF ITS TECHNICAL DIRECTOR WHO WOULD ASSIST IT IN PUTTI NG FORTH THE SUBMISSIONS AGAINST THE PROPOSED ENHANCEMENT. THE A SSESSEE WAS IN FACT ASKING FOR JUST A WEEKS TIME THE GRAN T OF WHICH WOULD NOT HAVE INCONVENIENCED ANYBODY IN ANY MANNER . IN OUR OPINION THE CIT(A) WITH RESPECT WAS NOT JUSTIFIE D IN REJECTING THE ADJOURNMENT APPLICATION AND IN PROCEEDING TO DI SPOSE OF THE APPEAL. THE ASSESSEE WAS DENIED AN EFFECTIVE OPPORT UNITY OF BEING HEARD. FROM THE DETAILS FILED BY THE ASSESSE E BEFORE US IT IS ALSO SEEN THAT THE MATTER WAS HEARD IN PART EARL IER AND WHEN AN ENHANCEMENT NOTICE WAS GIVEN TO THE ASSESSEE IT NEEDED TIME TO FILE ITS OBJECTIONS TO THE SAME ESPECIALLY WHEN ITS TECHNICAL DIRECTOR WAS NOT IN TOWN. THE TIME SOUGHT FOR IS AL SO REASONABLE. TAKING ALL THESE INTO CONSIDERATION WE SET ASIDE T HE ORDER PASSED BY THE CIT(A) ON 10.02.2009 AND RESTORE THE APPEAL TO HIS FILE FOR BEING DISPOSED OF AFRESH IN ACCORDANCE WITH LAW AND AFTER GIVING DUE OPPORTUNITY TO BOTH THE SIDES. ITA NO. 2498/MUM/2009 IS THUS ALLOWED FOR STATISTICAL PURP OSES. ITA NOS.2498 & 4258/M/09 4 5. ITA NO.4258/MUM/2009 IS AGAINST THE PENALTY IMPO SED BY THE CIT(A) CONSEQUENT TO THE ENHANCEMENT MADE BY HIM. SINCE WE HAVE SET ASIDE THE ORDER PASSED BY HIM ON 10.02.2009 IN THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASS ESSMENT ORDER AND RESTORED THE APPEAL TO HIS FILE FOR FRESH DECIS ION IN ACCORDANCE WITH LAW CONSEQUENTLY THE PENALTY IMPOS ED BY HIM BY ORDER DATED 11.05.2009 IS CANCELLED SINCE IT HAS NO LEGS TO STAND. 6. IN THE RESULT WHILE ITA NO.2498/MUM/2009 IS ALL OWED FOR STATISTICAL PURPOSES ITA NO.4258/MUM/2009 IS ALLOW ED. ORDER PRONOUNCED ON THIS 21 ST DAY OF MAY 2010. SD/- ( A.L. GEHLOT ) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER SENIOR VICE PRESIDENT MUMBAI DATED 21 ST MAY 2010. SOMU COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-15 MUMBAI. 4. THE CIT(A)-XV MUMBAI 5. THE DR E BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR I.T.A.T MUMBAI