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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI SANJAY GARG & SHRI RAMIT KOCHAR
Per Sanjay Garg, Judicial Member:
The above captioned both the appeals have been preferred by the assessee. First we take up the assessee’s appeal bearing agitating the exercise of revisional jurisdiction by the Commissioner of Income Tax [hereinafter referred to as the CIT] under section 263 of the Act.
This appeal of the assessee is barred by limitation of 168 days. An affidavit of Shri Rajender Prasad Tyagi, Director of the assessment company has been filed wherein the reasons for delay has been mentioned and condonation of delay in filing the appeal has been prayed for. It has been stated in the said affidavit that the assessee did not have any professional
2 ITA No.7762/M/2014 M/s. Ganjam Trading Co. Pvt. Ltd. employee and there were neither executive or whole time director or managing director of the company and the working directors were not aware of the legal implications. It was only during the half yearly review by the tax head of the group company that non filing of the appeal before the ITAT came to notice. The Ld. A.R. has further invited our attention to the impugned order to state that no proper opportunity of hearing was given to the assessee while passing the impugned order by the Ld. CIT under section 263 of the Act and that the same is an ex-parte order. She has also relied upon the decision of the Hon’ble Supreme Court in the case of “Collector, Land Acquisition vs. M/s. Kateji & Others” 1987 AIR 1353 and has therefore contended that if the delay is not condoned in this case, it would amount to legalizing the injustice carried out to the assessee on technical grounds whereas as per the law laid down by the Hon’ble Supreme Court, the interest of justice will be served in removing the injustice carried out to the assessee. Considering the peculiar facts of the case that there were no employees of the assessee company and there was no full time director or managing director and also considering the contents of the impugned order, in our view, in the peculiar facts and circumstances of the case, interest of justice will be well served, if the delay in filing of these appeals is condoned. We order accordingly. Now we proceed to come to the merits of the case.
The Ld. CIT, vide order dated 26.02.14, has set aside the original assessment order passed under section 143(3) of the Act dated 30.12.2011 and has restored the matter to the AO (hereinafter referred to as the AO) for denovo assessment. At the outset, the Ld. A.R. has brought our attention to the impugned order and has contended that no proper opportunity of hearing has been given by the Ld. CIT while passing the impugned order. She has specifically invited our attention to para 3 of the impugned order to show that only one opportunity of hearing i.e. on 25.02.14 was given to the assessee to
We have gone through the impugned order. We find that the Ld. CIT has specifically written that assessee was given hearing on 25.02.14 at 11:30 A.M., however, no one attended the hearing on the appointed date or submitted any written submissions. It has been further mentioned that as the matter was getting barred by limitation and there was lack of seriousness, therefore he decided to complete the pending revision proceedings. The Ld. CIT, thereafter, set aside the assessment order and directed for denovo assessment.
The Ld. A.R. has further invited our attention to the affidavit of Shri Rajender Prasad Tyagi, Director of the assessee company wherein it has been specifically deposed that the notice dated 30.01.2014 issued under section 263 of the Act was received by the assessee only on 24.02.2014 fixing the date of hearing on 25.02.2014. That he immediately forwarded the said notice to the Chartered Accountant of the company and a request for adjournment vide letter dated 25.02.2014 was carried personally by Chartered Accountant Ms. Heena Dagriya. However, the Ld. CIT refused to accept the letter and did not give any adjournment. Thereafter, the Ld. CIT passed impugned revision order. Under the circumstances no proper opportunity was given to the assessee to represent its case. It seems that the impugned order under section 263 has been passed by the Ld. CIT in a haste as it has also been pointed out in the order that the matter was getting barred by limitation. In view of this, both the representatives of the parties have fairly agreed that they have no objection, if the matter is restored to the Ld. CIT with a direction to pass a fresh order on merits after giving proper and reasonable opportunity of hearing to the assessee. We accordingly restore this matter to the file of the Ld. CIT to pass a fresh order after giving reasonable opportunity of hearing to the assessee.
Now coming to the second appeal bearing ITA No.7762/M/2014.
This appeal is preferred against the order of the Ld. CIT(A) dated 26.02.2014. We find that the appeal of the assessee against the assessment order dated 30.12.2011 under section 143(3) of the Act has been dismissed by the Ld. CIT(A) on the ground that since the assessment order has been set aside by the Ld. CIT under section 263 of the Act, hence, the impugned assessment order did not survive and therefore the appeal filed by the assessee had become infructuous.
Since we have already restored the matter in relation to the order passed by the Ld. CIT under section 263 of the Act for decision afresh, hence under the circumstances, till the fresh order by the Ld. CIT in set aside proceedings relating to the invocation of section 263 of the Act is passed, the a ssessment order dated 30.12.2011 passed by the AO under section 143(3) of the Act survives. Hence, the impugned order of the Ld. CIT(A) in this appeal is set aide and the matter is restored to the file of the Ld. CIT(A) for deciding the same on merits in accordance with law.
In the result, both the appeals of the assessee are treated as allowed for statistical purposes.