HATHI FINANCE P. LTD, MUMBAI v. ADDL CIT SP. RG-32, MUMBAI

ITA 3598/MUM/2009 | 1998-1999
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 359819914 RSA 2009
Assessee PAN AAACH7912G
Bench Mumbai
Appeal Number ITA 3598/MUM/2009
Duration Of Justice 2 year(s) 1 month(s) 12 day(s)
Appellant HATHI FINANCE P. LTD, MUMBAI
Respondent ADDL CIT SP. RG-32, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 15-07-2011
Date Of Final Hearing 05-07-2011
Next Hearing Date 05-07-2011
Assessment Year 1998-1999
Appeal Filed On 02-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI P.M.JAGTAP ACCOUNTANT MEMBER & SHRI R.S. PADVEKAR JUDICIAL MEMBER. I.T.A. NO. 3598/MUM/2009. ASSESS MENT YEAR : 1998-99. HATHI FINANCE PVT. LTD. THE INCOME-TAX OFFICER A/40 GOKUL ARCADE VS. 1(1)(4) MUMBAI. NEAR GARWARE HOUSE SAHAR ROAD VILE PARLE (E) MUMBAI -400 057. PAN AAACH 7912G APPELLANT. RESPONDENT. APPELLANT BY : SHRI K.K. VED AND SHRI K.J.PATEL. RESPONDEN T BY : SHRI A.G.NAYAK. O R D E R. PER P.M. JAGTAP A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-VII MUMBAI DATED 18-06-2001 PASSED EX PARTE DISMISSING THE APPEAL OF THE ASSESSEE AND UPHOLDING THE ASSESSMENT ORDER PASSED BY THE AO U/S 144. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF FINANCE AND HIRE PURCHASE. THE RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30 TH NOV. 1998 DECLARING A TOTAL INCOME OF RS.4 43 440/-. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY AND SINCE THERE 2 ITA NO.3518/MUM/2009 ASSESSMENT YEAR : 1998-99. WAS NO RESPONSE TO THE NOTICES ISSUED BY THE AO U/S 143(2) AND 142(1) FIXING THE HEARING FROM TIME TO TIME THE AO PROCEEDED TO COMP LETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT U/S 144 ON THE BASIS OF MATERI AL AVAILABLE ON RECORD. AS PER THE SAID ASSESSMENT THE TOTAL INCOME OF THE ASSESSEE W AS COMPUTED BY THE AO AT RS.69 77 560/- AFTER MAKING DISALLOWANCE OF RS.3 06 527/- AND RS.5 29 837/- ON ACCOUNT OF ADMINISTRATIVE EXPENSES AND FINANCE CHA RGES RESPECTIVELY AND A FURTHER ADDITION OF RS.56 97 758/- ON ACCOUNT OF UNSECURED LOANS TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68. 3. AGAINST THE ORDER PASSED BY THE AO U/S 144 AN A PPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS). DURING TH E COURSE OF APPELLATE PROCEEDINGS THERE WAS AGAIN NO COMPLIANCE ON THE P ART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE LEARNED CIT(APPEALS) FIXING T HE HEARING FROM TIME TO TIME. THE LEARNED CIT(APPEALS) THEREFORE PROCEEDED TO D ISPOSE OF THE APPEAL OF THE ASSESSEE EXPARTE AND DISMISSED THE SAME HOLDING THA T THERE WAS NOTHING BROUGHT ON RECORD BY THE ASSESSEE TO JUSTIFY INTERFERENCE IN T HE ORDER PASSED BY THE AO U/S 144. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS) THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US THE ASSESSEE HAS FILED AN ADDITIONAL GROUND CHALLENGING THE ORDERS PASSED BY THE AUTHORITIES BELOW EXPARTE ON THE GROUND THAT PROPER AND SUFFICIENT OP PORTUNITY WAS NOT AFFORDED BY THEM TO IT TO PUT FORTH ITS CASE. IN SUPPORT OF THE ISSUE RAISED IN THE ADDITIONAL GROUND THE DIRECTOR OF THE ASSESSEE COMPANY HAS FI LED AN AFFIDAVIT AFFIRMING ON OATH AS UNDER : 1. THAT I AM ONE OF THE DIRECTORS OF A COMPANY NAME D HATHI FINANCE PRIVATE LIMITED (HEREINAFTER REFERRED TO AS THE C OMPANY WHICH HAS 3 ITA NO.3518/MUM/2009 ASSESSMENT YEAR : 1998-99. ITS REGISTERED OFFICE AT A/40 GOKUL ARCADE NEAR G ARWARE HOUSE ROAD VILE PARLE (EAST) MUMBAI-400 057. 2. THAT THE REGISTERED OFFICE OF THE COMPANY WAS SH IFTED TO THE AFORESAID ADDRESS FROM 01 APRIL 2009. PRIOR TO THIS ITS REGISTERED ADDRESS WAS C/O.607 SHARDA CHAMBERS 15 NEW MARIN E LINES MUMBAI 400 020 INDIA WHICH WAS THE REGISTERED ADD RESS OF THE COMPANY FROM ITS INCORPORATION. 3. THAT THE ABOVE-MENTIONED ADDRESS (MENTIONED AT S R. NO.2 ABOVE) WAS THE ADDRESS OF THE STATUTORY AUDITORS OF THE CO MPANY MESSRS K.P. JOSHI & CO. CHARTERED ACCOUNTANTS. 4. THAT THE TAX CONSULTANT OF THE COMPANY MR. N.R. RAO ADVOCATE ARE ALSO PRACTICING FROM THE AFORESAID ADDRESS. 5. THAT ACCORDINGLY ALL THE NOTICES ETC. FROM TH E INCOME-TAX DEPARTMENT WERE SERVED/SENT TO THE COMPANY AT THE A FORESAID ADDRESS. 6. THAT EVEN FOR THE ASSESSMENT YEAR 1998-99 THE NO TICES ETC. FROM THE INCOME-TAX DEPARTMENT IN CONNECTION WITH THE IN COME-TAX ASSESSMENT/APPELLATE PROCEEDINGS WERE SENT TO THE C OMPANY ON THE AFORESAID ADDRESS. 7. THAT SINCE WE HAD ENGAGED THE SAID MR. N.R. RAO ADVOCATE TO REPRESENT THE COMPANY BEFORE THE INCOME-TAX AUTHORI TIES (WHO WAS AND IS EVEN TODAY OUR FAMILY FRIEND) IT WAS ALWAYS PRESUMED THAT HE WOULD ATTEND TO ALL THE STATUTORY NOTICES ETC. RE CEIVED FROM THE INCOME-TAX DEPARTMENT. 8. THAT DURING THE PERIOD WHEN THE SCRUTINY ASSESSM ENT / APPELLATE PROCEEDINGS FOR THE ASSESSMENT YEAR 1998-99 WERE GO ING ON BOTH ME AND MY FATHER LATE MR. TULSIDAS HATHI WHO WAS ALSO DIRECTOR OF THE COMPANY WERE BASED IN PORBANDAR GUJARAT SINCE THA T IS THE PLACE FROM WHERE OUR MAIN FAMILY BUSINESS OF COAL TRADING IS CARRIED OUT THROUGH OUR OTHER COMPANY VUIZ. PORBANDAR COAL AG ENCIES PVT. LTD.. 9. THAT IT WAS ONLY AFTER THE PASSING OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND THE SUBSEQUENT FOLLOW-U P BY THE TAX AUTHORITIES ON THE PAYMENT OF THE DEMAND RAISED FOR THE SAID ASSESSMENT YEAR 1998-99 THAT IT HAD BEEN BROUGHT TO AND HENCE COME TO OUR NOTICE THAT BOTH THE ASSESSMENT AND THE APPE LLATE ORDERS WERE 4 ITA NO.3518/MUM/2009 ASSESSMENT YEAR : 1998-99. DECIDED AGAINST THE COMPANY EX-PARTE ON ACCOUNT OF NON-RESPONDING TO THE NOTICES RECEIVED FROM THE INCOME-TAX DEPARTM ENT. 10. THAT ACCORDINGLY THE NON-ATTENDANCE WAS ON ACCO UNT OF NON- REPRESENTATION BEFORE THE TAX AUTHORITIES BY OUR AU THORIZED REPRESENTATIVE. 4. KEEPING IN VIEW THE CONTENTS OF THE AFFIDAVIT F ILED ON BEHALF OF THE ASSESSEE WE FIND THAT THERE WAS A SUFFICIENT CAUSE FOR NON COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS BY THE LEARNED CIT(APPEALS) DURING THE COURSE OF APPELLATE PROCEEDINGS AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LEARNED DR AT THE TIME OF HEARING. HE HAS ALSO NOT RAISED ANY OBJECTI ON FOR THE ADMISSION OF ADDITIONAL GROUND WHEREIN A PRELIMINARY LEGAL ISSUE ARISING FROM THE ORDERS OF THE AUTHORITIES BELOW HAS BEEN RAISED BY THE ASSESSEE. THE SAID ADDITIONAL GROUND THEREFORE IS ADMITTED BY US AND DECIDING THE ISSUE RAISED THEREIN IN FAVOUR OF THE ASSESSEE WE SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW PASSED EXPARTE AND RESTORE THE CASE TO THE FILE OF THE AO FOR COMPLETING A FR ESH ASSESSMENT AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD IN ACCORDANCE WITH LAW. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. . ORDER PRONOUNCED ON THIS 15 TH DAY OF JULY 2011. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI DATED: 15 TH JULY 2011. WAKODE 5 ITA NO.3518/MUM/2009 ASSESSMENT YEAR : 1998-99. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR H-BENCH. (TRUE COPY ) BY ORD ER ASSTT. R EGISTRAR ITAT MUMBAI BEN CHES MUMBA I.