ENCEE DYING & PTG, WORKS P. LTD,MUMBAI vs. ADDL CIT RG 9(1), MUMBAI

IN THE INCOME-TAX APPELLATE TRIBUNAL “F” BENCH MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA No. 2365/Mum/2010 (Assessment Year 2004-05) Encee Dying & PTG. Works Pvt. Additional Commissioner of Ltd., Plot No. 25, Cama Income Tax, Range 9(1) Industrial Estate, Walbhat Road, Vs. Aayakar Bhavan, M.K. Road, Goregoan (East), Mumbai-400020. Mumbai-400053. PAN: AAACE6180Q Appellant Respondent Appellant by : Shri Sandeep Shridhar (AR) Respondent by : Shri Rajeev Gubgotra (DR)

Date of Hearing : 05.09.2018 Date of Pronouncement : 25.10.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT

ER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal by assessee under Section 253 of Income-tax Act is directed

against the order of ld. Commissioner (Appeals)-9, Mumbai dated

19.01.2009 for Assessment Year 2004-05. The assessee has raised the

following grounds of appeal:

(1) The learned Commissioner (Appeals) erred in dismissing the appeal in limine and accordingly erred in confirming the penalty under section 271E of Rs. 12,87,639/- in contravention of provision of section 269T of Income tax Act 1961. (2) The learned Commissioner (Appeals) erred in deciding the appeal ex parte did not considered the evidence placed before Additional Commissioner of income tax Range-9(1) Mumbai and recorded by him in his order levying penalty of Rs. 1287639/-. (3) The learned Commissioner (Appeals) therefore, erred in holding that no supporting evidence was filed.

ITA No. 2365/Mum/2010-Encee Dying & PTG. Works Pvt. Ltd.

(4) The learned Commissioner (Appeals) erred in dismissing miscellaneous application filed dated 24th February 2009 for recall of the order and adjudication afresh on merits. (5) The appellant submits that the appellant could not file the appeal earlier as the miscellaneous application dated 19th February, 2009 is disposed off only on 1st January 2010. (6) The appellant submits that technical delay in filing the appeal the condoned and appeal be admitted and hard accordingly. 2. Brief facts of the case are that the assessing officer while passing

assessment order for Assessment Year 2004-05 noted that the assessee

has made payment of loan to various parties otherwise then by cross

cheque, thereby violated the provisions of section 269Tof Income tax Act

(the Act). The Assessing Officer referred the case to the Additional

Commissioner of Income Tax Act (Add. CIT) for necessary action. The

Add.CIT after granting opportunity of hearing to the assessee levied the

penalty of Rs. 12,87,639/- for contravention of provision of section 269T of the Act vide order dated 10th March 2008. On appeal before the ld.

Commissioner (Appeals) the action of Assessing Officer was confirmed.

The learned Commissioner (Appeals) dismissed the appeal as ex-parte.

The ld. Commissioner (Appeals) decided the appeal on the basis of material available on record vide impugned order dated 19th January

2009. Thereafter, the assessee filed Miscellaneous Application for

recalling the ex-parte order before learned Commissioner (Appeals). The

Miscellaneous Application of the assessee was also dismissed by ld.

ITA No. 2365/Mum/2010-Encee Dying & PTG. Works Pvt. Ltd.

Commissioner (Appeals) vide order dated 1st December 2009, holding

that the assessee is seeking the review of the order. The assessee being

aggrieved by the order of ld. Commissioner (Appeals) on the order on

miscellaneous application as well as in dismissing the appeal ex-parte

filed the present appeal before the Tribunal. 3. We have heard the submission of Authorised Representative (AR) of the

assessee and Departmental Representative (DR) for revenue and perused

the material available on record. The perusal of record reveals that, even

this appeal was dismissed twice; however, on filing miscellaneous

application the order was recalled. The learned AR of the assessee

submits that the ld. Commissioner (Appeals) passed the order ex-parte

without giving fair and proper opportunity to the assessee. The learned

AR further submits that assessee has raised specific grounds of appeal in

ground no. 1 & 2. The learned AR further submits that the assessee has

furnished sufficient evidence and shown sufficient cause in making

payments otherwise then cross cheques. Therefore, no penalty order was

levied against the assessee.

lower authorities. The learned DR submits that the assessee is most

negligent in proper perusing the case before ld. Commissioner (Appeals).

The ld. Commissioner (Appeals) passed the order after giving sufficient

opportunity, when the assessee failed to appear the order was passed on 3

ITA No. 2365/Mum/2010-Encee Dying & PTG. Works Pvt. Ltd.

the basis of material available on record. In the miscellaneous application these assessee failed to bring out any mistake apparent on the record. As there was no mistake apparent in the order, therefore the application of assessee was dismissed. 5. We have considered the submissions of the ld. AR of the assessee and ld. DR for the revenue and perused the record. The perusal of impugned order dated 9th January 2009 reveals that the appeal was fixed for hearing on 23rd September 2008, 15th December 2008 and finally on 15th January 2009. The learned Commissioner (Appeals) passed the order on 19.01.2009. The ld. Commissioner (Appeals) while passing the impugned order noted that there is no compliance from the assessee. We have seen that the ld. Commissioner (Appeals) further noted that assessee sought adjournment on 13th September 2008 and again on 9th December 2008. We have noted that the learned Commissioner (Appeals) before proceeding ex-parte has not recorded his satisfaction, if notice for the hearing fixed on 15th January 2009 was served upon the assessee. There is no satisfaction recorded in the impugned order that the assessee has not appeared despite the service of notice of hearing. There is no satisfaction of learned Commissioner (Appeals) that the notice was served upon the assessee or not. The learned Commissioner (Appeals) presumed that notice for the hearing was served upon the assessee.

ITA No. 2365/Mum/2010-Encee Dying & PTG. Works Pvt. Ltd.

(Appeals) recorded that the appeal is decided on the basis of material on

record. In the impugned order there is no reference as to what material

was considered by learned Commissioner (Appeals) while passing the

impugned order. Fact remains the same that the impugned order was

passed ex parte. The application filed by assessee for recalling of the

order was also dismissed holding that there is no mistake apparent in the

order which require rectification and that the assessee was seeking review

of the order.

justice. The basic concept in this principal is that no one should be

condemned unheard. This principal is sine a qua non in every judicial and

quasi judicial proceedings. Admittedly the impugned order on appeal of

the assessee was passed without hearing of the assessee. Therefore,

keeping in view the principal audi alteram petrem the ground No. &2

raised by the assessee are allowed; resultantly the appeal is restored to the

file of learned Commissioner (Appeal) to decide the appeal on merit in

accordance with law. Needless to say the ld. Commissioner (Appeals)

shall grant fair opportunity to the assessee before deciding the appeal.

The assessee is directed to fully co-operate and provide all evidence and

information to the ld Commissioner (Appeals) and not to seek

ITA No. 2365/Mum/2010-Encee Dying & PTG. Works Pvt. Ltd.

adjournment without valid reasons. In the appeal of the assessee is

allowed for statistical purpose.

Order pronounced in the open court on 25/10/2018.

Sd/- Sd/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 25.10.2018 SK Copy of the Order forwarded to : 1. Assessee 2. Respondent 3. The concerned CIT(A) 4.The concerned CIT 5. DR “F” Bench, ITAT, Mumbai 6. Guard File

BY ORDER, Dy./Asst. Registrar ITAT, Mumbai