CHEMFERT TRADERS (BOMBAY)P. LTD, MUMBAI v. ITO 1(1)(2), MUMBAI

ITA 4417/MUM/2009 | 2004-2005
Pronouncement Date: 30-12-2011 | Result: Allowed

Appeal Details

RSA Number 441719914 RSA 2009
Assessee PAN AAACC1457K
Bench Mumbai
Appeal Number ITA 4417/MUM/2009
Duration Of Justice 2 year(s) 5 month(s) 8 day(s)
Appellant CHEMFERT TRADERS (BOMBAY)P. LTD, MUMBAI
Respondent ITO 1(1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 30-12-2011
Date Of Final Hearing 28-12-2011
Next Hearing Date 28-12-2011
Assessment Year 2004-2005
Appeal Filed On 22-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI B. RAMAKOTAIAH A.M. AND SHRI V. DURGA RAO J.M. ITA NOS. 4416 & 4417/MUM/2009 ASSESSMENT YEAR: 2003-04 & 2004-05 CHEMFERT TRADERS(BOMBAY) PVT. LTD. APPELLANT KONE VILLAGE TAL. WADA DIST. THANE. (PAN AAACC1457K) VS. INCOME TAX OFFICER-1(1)(2) RESPONDENT AAYAKAR BHAVAN MUMBAI. APPELLANT BY : MR. KISHORE K. PODDAR RESPONDENT BY : MR. PARTHASARATHY NAIK DATE OF HEARING : 28/12/2011 DATE OF PRONOUNCEMENT : 28/12/2011 ORDER PER B. RAMAKOTAIAH A.M.: BOTH THESE APPEALS PERTAINING TO ONE ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF CIT(A)-I MUMBAI PASSED ON 30 /04/2009 FOR ASSESSMENT YEARS 2003-04 AND 2004-05. 2. GROUND NO. 1 IS COMMON IN BOTH THE APPEALS DIR ECTED AGAINST THE ACTION OF THE CIT(A) IN CONFIRMING THE ESTIMATI ON OF NET PROFIT AT 10% ON SALES MADE BY THE AO U/S 144 OF THE ACT. 3. AS THE ASSESSEE HAS NOT APPEARED BEFORE THE ITAT WHEN THE SAID APPEALS FIXED FOR HEARING ON 26/03/10 TO CONTEST AN D ARGUE ITS CASE ON THE SAID GROUND THE ITAT PASSED EX-PARTE ORDER DATED 30/03/2010 CONFIRMING THE ORDERS PASSED BY THE REVENUE AUTHORI TIES. SUBSEQUENTLY VIDE ORDER DATED 21/10/11 IN M.A. NOS . 444 & 445/MUM/2011 THE ORDER WAS RECALLED UNDER RULE 24 OF THE APPELLATE ITA NO. 4416 & 4417/MUM/09 CHEMFORT TRADERS (BOMBAY) PVT. LTD. 2 TRIBUNAL RULES AND HENCE THESE APPEALS ARE BEFORE US FOR ADJUDICATION. 4. IN BOTH THE APPEALS THE MAIN ISSUE IS WITH REFE RENCE TO THE ESTIMATION OF PROFIT AT 10% ON SALES. SINCE THERE W AS NO COMPLIANCE AND COOPERATION FROM THE ASSESSEE AGAINST THE NOTIC ES ISSUED BY THE ASSESSEE TO SUBMIT THE DETAILS PERTAINING TO THE IS SUE UNDER CONSIDERATION THE AO PASSED EX-PARTE ORDER U/S 144 OF THE ACT ESTIMATING THE NET PROFIT AT 10% ON RESPECTIVE ISSU ES. THE CIT(A) WHILE PASSING EX-PARTE ORDER CONFIRMED THE ACTION OF THE AO IN BOTH THE ASSESSMENT YEARS. AGGRIEVED THE ASSESSEE IS IN APPEALS BEFORE US. 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE LOSSES SUFFERED IN THE INTERVENING PERIOD AND S HIFTING OF OFFICES THE ASSESSEE COULD NOT APPEAR BEFORE THE AO AS THE NOTICES ISSUED BY THE AO IN TIME WERE NOT SERVED UPON THE ASSESSEE DU E TO THE REASONS AS MENTIONED ABOVE. HE FURTHER SUBMITTED THAT THE A SSESSEE COMPANY HAS NEVER EARNED SUCH HUGE PROFITS ON THE TURNOVER IN THE LAST 15 YEARS OR SO HENCE THERE IS NO BASIS FOR ESTIMATIN G THE PROFIT AT 10%. HE FURTHER SUBMITTED THAT THE CIT(A) ASKED FOR THE REMAND REPORT WHILE DECIDING THE APPEALS AND THE AO SUBMITTED REM AND REPORT IN WHICH THE AO HIMSELF HAS REDUCED THE AMOUNTS TO BE BROUGHT TO TAX BUT THE CIT(A) HAS NOT CONSIDERED THE REMAND REPORT AND DECIDED THE APPEALS EX-PARTE IN SPITE OF COMPLIANCE FROM THE AS SESSEE. IT WAS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS BOOKS OF ACCOU NT IF THE MATTER IS RESTORED TO THE FILE OF THE AO. 6. ON THE OTHER HAND THE LEARNED DR HAS NO OBJECTI ON IF THE MATTER IS RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. ITA NO. 4416 & 4417/MUM/09 CHEMFORT TRADERS (BOMBAY) PVT. LTD. 3 7. WE HAVE CONSIDERED THE ISSUE AND EXAMINED THE RE CORD. AS SUBMITTED BY THE ASSESSEE THERE WAS A REASONABLE C AUSE FOR NOT APPEARING BEFORE THE AO BUT THE ASSESSEE SUBMITTED THE DETAILS BEFORE THE CIT(A) TO JUSTIFY THE BOOKS OF ACCOUNT. IN THE REMAND REPORT DATED 05/05/2008 THE AO AFTER VERIFYING THE RECORD IN EAR LIER YEARS ESTIMATED THE NET PROFIT LOWER THAN ESTIMATED EARLI ER AT 10% UNFORTUNATELY THE CIT(A) NEITHER CONSIDERED THE RE MAND REPORT NOR CONSIDERED THE SUBMISSIONS BUT CONFIRMED THE ORDERS F THE AO. IN VIEW OF THESE FINDINGS AND IN THE INTEREST OF JUSTICE W E ARE OF THE OPINION THAT THE MATTER SHOULD GO BACK TO THE AO FOR FRESH EXAMINATION OF THE BOOKS OF ACCOUNT BY GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE AFORESAID ISSUE OF ESTIMATION OF NE T PROFIT AND REJECTION OF BOOKS OF ACCOUNT. ACCORDINGLY WE REST ORE THE ISSUE TO THE FILE OF THE AO ON THIS ISSUE. THUS THE GROUND RAIS ED IN BOTH THE APPEALS IS TREATED AS ALLOWED FOR STATISTICAL PURPO SES. 8. THE ASSESSEE HAS RAISED ANOTHER GROUND IN AY 200 3-04 WITH REFERENCE TO THE DISALLOWANCE MADE BY THE AO U/S 43 B OF RS.29 857/-. 9. THIS ISSUE WAS DECIDED ON MERITS BY THE TRIBUNAL IN ITS EARLIER ORDER (SUPRA) WHEREIN IT WAS HELD THAT THE AMOUNTS ARE ALLOWABLE AS THE SAID PAYMENTS WERE MADE BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. AS THERE IS NO DISPUTE WITH REFERENCE TO THE FACT THAT THE PAYMENTS WERE MADE WITHIN THE FY BEFORE THE DUE DAT E FOR FILING OF THE RETURN AND THE FACT OF WHICH WAS CONFIRMED BY THE T RIBUNAL IN ITS EARLIER ORDER WE SET ASIDE THE ORDER OF THE CIT(A) AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. ITA NO. 4416 & 4417/MUM/09 CHEMFORT TRADERS (BOMBAY) PVT. LTD. 4 10. IN THE RESULT BOTH THE APPEALS ARE CONSIDERED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF DECEMBER 2011 UPON CONCLUSION OF HEARING. SD/- SD/- (V. DURGA RAO) ( B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNT ANT MEMBER MUMBAI DATED: 28 TH DECEMBER 2011. KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE C BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI. ITA NO. 4416 & 4417/MUM/09 CHEMFORT TRADERS (BOMBAY) PVT. LTD. 5