NIBR BULLION P.LTD, MUMBAI v. DCIT CEN CIR 3, MUMBAI

ITA 5802/MUM/2014 | 2008-2009
Pronouncement Date: 14-11-2014 | Result: Allowed

Appeal Details

RSA Number 580219914 RSA 2014
Assessee PAN AABCN7138C
Bench Mumbai
Appeal Number ITA 5802/MUM/2014
Duration Of Justice 1 month(s) 29 day(s)
Appellant NIBR BULLION P.LTD, MUMBAI
Respondent DCIT CEN CIR 3, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 14-11-2014
Assessment Year 2008-2009
Appeal Filed On 15-09-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNALB BENCH MUMB AI . . ! '# ' $ BEFORE SHRI JOGINDER SINGH JM AND SHRI B.R.BASKARAN AM ITA NO.5800/MUM/2014 ASSESSMENT YEAR-2006-07 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) ITA NO.5801/MUM/2014 ASSESSMENT YEAR-2007-08 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) ITA NO.5802/MUM/2014 ASSESSMENT YEAR-2008-09 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) 2 NIBR BULLION PVT. LTD.. ITA NO.5803/MUM/2014 ASSESSMENT YEAR-2009-10 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) S.A. NO.335/MUM/2014 (ARISING OUT OF ITA NO.5800/MUM/2014) ASSESSMENT YEAR-2006-07 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) S.A. NO.336/MUM/2014 (ARISING OUT OF ITA NO.5801/MUM/2014) ASSESSMENT YEAR-2007-08 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) S.A. NO.337/MUM/2014 (ARISING OUT OF ITA NO.5802/MUM/2014) ASSESSMENT YEAR-2008-09 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) 3 NIBR BULLION PVT. LTD.. S.A. NO.338/MUM/2014 (ARISING OUT OF ITA NO.5803/MUM/2014) ASSESSMENT YEAR-2009-10 NIBR BULLION PVT. LTD. 78-A SHEIKH MEMON STREET MUMBAI-400002 ! ! ! ! / VS. DCIT CENTRAL CIRCLE-3 MUMBAI % '# ./ PAN :AABCN7138C ( %& / APPELLANT ) .. ( '(%& / RESPONDENT ) %& ) * ' / ASSESSEE BY: SHRI D.V. LAKHANI '(%& ) * ' / RESPONDENT BY : SHRI PREMANAND J. - DR ! ) + # / DATE OF HEARING 14/11/2014 -. ) + # / DATE OF PRONOUNCEMENT : 14/11/2014 '/ / O R D E R PER JOGINDER SINGH JM: THE ASSESSEE HAS PREFERRED STAY APPLICATIONS AND AL SO FILED IMPUGNED APPEALS AGAINST THE RESPECTIVE ORDER S OF THE LD. FIRST APPELLATE AUTHORITY. 2. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SHRI D.V. LAKHANI CONTENDED THAT GREAT INJUSTICE HA S BEEN CAUSED TO THE ASSESSEE AS EX-PARTY ORDERS HAVE BEEN PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MER ELY ON THE GROUND THAT THE AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE FILED ADJOURNMENT PETITION AND ON THE LAST DATE OF HEARING BEFORE THE LD. CIT(A) DUE TO AILMENT THE REPRESEN TATIVE OF THE ASSESSEE COULD NOT APPEAR FOR WHICH THE ASSESSEE HA S FILED AN 4 NIBR BULLION PVT. LTD.. AFFIDAVIT FROM SHRI ASHUTOSH SHRIVASTAVA (AUTHORISE D REPRESENTATIVE). THE ASSESSEE WAS NOT AWARE ABOUT F IXING OF THE APPEALS THEREFORE THE ASSESSEE CANNOT BE DENI ED JUSTICE DUE TO THE FAULT IF ANY OF THE CHARTERED ACCOUNTA NT. ON THE OTHER HAND THE LD. DR SHRI PREMANAND DEFENDED THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BY SUBMITTING THAT IT WAS THE DUTY OF THE ASSESSEE TO MAKE EFFECTIVE REPRESENTATION ON THE APPOINTED D ATE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDER THE FACTS NARRATED BEFORE US WE ARE SATISFIED THAT THERE IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE THEREFORE WE TEND TO TAKE UP T HE APPEALS OF THE ASSESSEE ON MERIT BECAUSE JUSTICE DELAYED IS JUSTICE DENIED AND NO USEFUL PURPOSE WILL BE SERVED IF TH E APPEALS ARE KEPT PENDING INDEFINITELY AND IF ANY TAXES/PENA LTY ARE DUE/LEVIABLE THEN IT SHOULD NOT BE DELAYED TO BE DE POSITED IN THE STATE EX-CHEQUER. THE INTENTION OF THE LEGISLA TURE IS TO LEVY AND COLLECT DUE TAXES. WITHOUT ADVERTING FURT HER WE TAKE THE APPEALS OF THE ASSESSEE FIRST. THE FACTS IN BRIEF ARE THAT THERE WAS SEARCH AND SEIZURE OPERATION UPON TH E ASSESSEE ON 25/09/2008 AND CONSEQUENTLY IN RESPONS E TO NOTICE U/S 153A OF THE ACT THE ASSESSEE DECLARED T OTAL INCOME AT RS.21 25 480/-. SUBSEQUENTLY ORDER U/S 143(3) R.W.S 153A OF THE ACT WAS PASSED ON 31/12/2010 DETERMINING THE TOTAL INCOME AT RS.33 79 810/-. TH E ASSESSING OFFICER MADE CERTAIN ADDITIONS AND PENALT Y PROCEEDINGS WERE INITIATED. THE APPEALS OF THE ASSE SSEE WERE 5 NIBR BULLION PVT. LTD.. INSTITUTED BEFORE THE LD. COMMISSIONER OF INCOME TA X (APPEALS) AGAINST THE PENALTY ORDER U/S 271(1)(C) O F THE INCOME-TAX ACT 1961 (HEREINAFTER THE ACT) DATED 26/03/2001. AGAINST THE QUANTUM ADDITION THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GAVE PART RELI EF TO THE ASSESSEE. THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) CONFIRMED THE ADDITION WITH RESPECT TO PURCHASE OF SILVER/ GROSS PROFIT AND DELETED THE ADDITION WITH RESPECT TO DISALLOWANCE OF EXPENDITURE ON MOBILE AND TELEPHONE . THE ADDITION WAS SUSTAINED TO THE TUNE OF RS.10 06 919/ - ON ACCOUNT OF PURCHASE OF SILVER WHICH BECAME SUBJECT MATTER OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. THE ASSE SSEE CARRIED THE PENALTY ORDERS BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS). THE APPEALS WERE FIXED FOR 01/05/2014 A ND AT THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE ADJOURN ED TO 02/06/2014. ON THE NEXT DATE I.E. 01/07/2014 THE L D. COUNSEL FOR THE ASSESSEE COULD NOT APPEAR DUE TO SI CKNESS. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DISMIS SED THE APPEAL EX-PARTY. THE ASSESSEE HAS ALSO FILED AN AFF IDAVIT FROM THE CONCERNED/AUTHORISED CHARTERED ACCOUNTANT (PAGE 91 OF THE PAPER BOOK) AFFIRMING THAT HE WAS SICK AND DUE TO AILMENT ONLY HE COULD NOT APPEAR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON 01/07/2014. IN SUCH A SITUATION WE ARE SATISFIED THAT THERE IS A REASONABLE CAUSE FOR NON-APPEARANCE OF THE LD. COUNSEL FOR TH E ASSESSEE. WE ARE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD THEREFORE KEEPING IN VIEW THE PRINCIPLE 6 NIBR BULLION PVT. LTD.. OF NATURAL JUSTICE AND THE MATERIAL AVAILABLE ON RE CORD WE SET-ASIDE THE IMPUGNED EX-PARTY ORDERS AND RESTORED THESE APPEALS TO THE FILE OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) FOR FRESH ADJUDICATION ON MERIT. NEEDLES TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVID ED TO THE ASSESSEE WITH FURTHER LIBERTY TO FURNISH EVIDENCE IF ANY IN SUPPORT OF ITS CLAIM. THESE APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. 3. SINCE WE HAVE DISPOSED OFF THE APPEALS BY SETTI NG ASIDE THE IMPUGNED EX-PARTY ORDERS THEREFORE THE STAY P ETITIONS FILED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS CONSEQUENTLY DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 14/11/2014. SD/- SD/- B.R.BASKARAN JOGINDER SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI; 0! DATED.- 14/11/2014 F{X~{T? P.S/. ! . . '/ '/ '/ '/ ) )) ) '+1 '+1 '+1 '+1 2'1.+ 2'1.+ 2'1.+ 2'1.+ / COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- CONCERNED MUMBAI 4. 3 / CIT CONCERNED MUMBAI 5. 1 '+! / DR ITAT MUMBAI E BENCH 7 NIBR BULLION PVT. LTD.. 6. 45 6 / GUARD FILE. '/! '/! '/! '/! / BY ORDER (1+ '+ //TRUE COPY// 7 77 7 / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI.