DHANRAJ MILLS P. LTD, MUMBAI v. ACIT (OSD)-II CEN RG-7, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH MUMBAI BEFORE SHRI N.V. VASUDEVAN JM & SHRI R.K. PANDA A M BEFORE SHRI N.V. VASUDEVAN JM & SHRI R.K. PANDA A M BEFORE SHRI N.V. VASUDEVAN JM & SHRI R.K. PANDA A M BEFORE SHRI N.V. VASUDEVAN JM & SHRI R.K. PANDA A M I.T.A. NO. 2871/MUM/2009 I.T.A. NO. 2872/MUM/2009 (ASSESSMENT YEAR 2004-05) M/S. DHANRAJ MILLS PVT. LTD. C/O. PANDYA GANDHI & CO. ADVOCATES & SOLICITORS ADORE HOUSE K. DUBASH MARG MUMBAI-400 001 PAN: AAACD 5580 D VS. VS. VS. VS. ACIT (OSD)-II CENTRAL RANGE-7 4 TH FLOOR AAYAKAR BHAVAN MUMBAI-400 020 APPELLANT APPELLANT APPELLANT APPELLANT RESPONDENT RESPONDENT RESPONDENT RESPONDENT APPELLANT BY: SHRI VIJAY KOTHARI RESPONDENT BY: DR. P. DANIEL O R D E R O R D E R O R D E R O R D E R DATE OF HEARING: 14.05.2010 DATE OF ORDER: 21.05.2010 PER R.K. PANDA AM: PER R.K. PANDA AM: PER R.K. PANDA AM: PER R.K. PANDA AM: THE ABOVE TWO APPEALS FILED BY THE ASSESSEE ARE DI RECTED AGAINST THE SEPARATE ORDERS DATED 27 TH FEBRUARY 2009 OF THE CIT(A) CENTRAL-V MUMBAI RELATING TO ASSESSMENT YEAR 2004-05. I.T.A. NO. 2 871/MUM/2009 RELATES TO THE ORDER OF THE CIT(A) AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143(3) WHEREAS I.T.A. NO. 2872/ MUM/2009 RELATES TO THE ORDER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER U/S. 271B OF THE INCOME-TAX ACT 1961 (THE ACT). FOR THE SAKE OF CO NVENIENCE BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY T HIS COMMON ORDER. 2. AFTER HEARING BOTH THE SIDES WE FIND THE CIT(A) DI SMISSED BOTH THE APPEALS AS UNADMITTED U/S. 249(4) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT PAID THE ADMITTED TAX. WE FIND THE TRIBUNA L IN ASSESSEES OWN CASE VIDE I.T.A. NO. 1713/MUM/2007 ORDER DATED 24 TH APRIL 2008 FOR THE A.Y. 2002- 03 HAS HELD THAT THE ASSESSEE COULD NOT BE COMPELLE D TO DO THE IMPOSSIBLE SINCE IT WAS A PERSON NOTIFIED UNDER SPECIAL COURT ACT. IT WAS HELD BY THE TRIBUNAL THAT THE REQUEST BY THE ASSESSEE TO THE AS SESSING OFFICER TO REQUEST THE SPECIAL COURT FOR RELEASE OF NECESSARY FUNDS TO WARDS TAX ON RETURNED INCOME AMOUNTED TO CONSTRUCTIVE PAYMENT OF ADMITTED TAX. ACCORDINGLY THE TRIBUNAL SET ASIDE THE ORDER OF THE CIT(A) WITH A D IRECTION FOR FRESH ADJUDICATION ON MERIT. I.T.A. NOS. 2871&2872/MUM/2009 M/S. DHANRAJ MILLS PVT. LTD. ========================= 2 3. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2002-03 W E SET ASIDE THE ORDERS OF THE CIT(A) IN BOTH THE APPEALS AND DIRECT HIM TO AD JUDICATE THE ISSUE ON MERIT. NEEDLESS TO SAY THE CIT(A) SHALL GIVE REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 4. IN THE RESULT BOTH THE APPEALS FILED BY THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 21ST MAY 2010. SD/ SD/ SD/ SD/- -- - (N.V. VASUDEVAN) (N.V. VASUDEVAN) (N.V. VASUDEVAN) (N.V. VASUDEVAN) JUDICIAL MEMBER SD/ SD/ SD/ SD/- -- - ( (( (R.K. PANDA R.K. PANDA R.K. PANDA R.K. PANDA) )) ) ACCOUNTANT MEMBER MUMBAI DATED 21ST MAY 2010 COPY TO: (1) THE APPELLANT (2) THE RESPONDENT (3) THE CIT(A) CENTRAL-V MUMBAI (4) THE CIT CENTRAL-II MUMBAI (5) THE DR D BENCH ITAT MUMBAI. //TRUE COPY// //TRUE COPY// //TRUE COPY// //TRUE COPY// / / TRUE COPY / / / / TRUE COPY / / / / TRUE COPY / / / / TRUE COPY / / BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO I.T.A. NOS. 2871&2872/MUM/2009 M/S. DHANRAJ MILLS PVT. LTD. ========================= 3 DATE INITIALS DRAFT DICTATED ON 17. 10.2010 SR. P.S. DRAFT PLACED BEFORE THE AUTHOR 17.10.2010 SR. P.S . DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER AM/JM DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM APPROVED DRAFT COMES TO THE SR. PS SR. P.S. KEPT FOR PRONOUNCEMENT ON SR. P.S. FILE SENT TO THE BENCH CLERK SR. P.S. DATE ON WHICH FILE GOES TO THE HEAD CLERK DATE OF DISPATCH