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Income Tax Appellate Tribunal, “J” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI ASHWANI TANEJA
PER SAKTIJIT DEY, J.M.
The aforesaid appeals are directed against two separate orders of the learned Commissioner (Appeals)–5, Mumbai, for the assessment year 2004–05 and 2008–09.
Briefly stated the facts are, assessee a company is engaged in manufacturing of twisted steel bars and roll products. For the 2 M/s. Jolly Steel Industries Pvt. Ltd.
assessment year 2004–05, assessee filed its return of income on 28th October 2004, declaring loss of ` 98,42,410. Subsequently, assessee filed a revised return on 14th March 2006, declaring total income of ` 6,27,37,969. Assessment in case of the assessee was completed under section 143(3) r/w section 147 of the Act by determining total income of ` 9,75,91,540. As far as assessment year 2008–09 is concerned, assessee filed its return of income on 26th October 2009, declaring nil income and assessment in case of assessee was completed under section 144 of the Act vide order dated 23rd December 2010, determining total income of ` 47,26,740. Against the assessment order so passed, assessee preferred appeals before the learned Commissioner (Appeals).
As it appears, appeals filed for both the assessment years were heard ex–parte by the learned Commissioner (Appeals) and he ultimately passed orders for both the assessment years dismissing the appeals of the assessee.
The learned Counsel, appearing for the assessee, submitted, promotor of the company Shri K.L. Jolly, had passed away in June 2006 and was survived by his only daughter who is a housewife and stays at Chennai. Therefore, proper representation could not be 3 M/s. Jolly Steel Industries Pvt. Ltd.
made either during the assessment proceedings or even before the learned Commissioner (Appeals). Learned Counsel for the assessee submitted, though, the company has its office establishment but due to communication gap, no one could appear before the learned Commissioner (Appeals) as a result, appeals were heard and disposed off ex–parte. Learned Counsel for the assessee submitted that as the appeals by the assessee were decided ex–parte without hearing assessee’s contentions, in the interest of justice, matter should be restored back to the file of the learned Commissioner (Appeals) for adjudicating afresh on merit after hearing the assessee.
Learned Departmental Representative has no serious objection if one more opportunity is given to the assessee for representing the case before the learned Commissioner (Appeals).
We have considered the submissions of the parties and perused the material available on record. As could be seen, appeals for the impugned assessment years were disposed off ex–parte by the learned Commissioner (Appeals) as, according to him, in spite of several notices being issued, no one appeared on behalf of the assessee to represent the case. Even the assessment for A.Y. 2008–
4 M/s. Jolly Steel Industries Pvt. Ltd.
09 was also completed ex–parte under section 144 of the Act. However, it is evident from the order of the learned Commissioner (Appeals) that being conscious of the fact the promoter of the company had expired and his sole legal heir is staying at Chennai, learned Commissioner (Appeals) had condoned the delay. In our view, non–appearance before the learned Commissioner (Appeals) could be for the very same reason. Considering the plea of the assessee for granting one more opportunity to represent the case before the learned Commissioner (Appeals) on merit, we, in the interest of justice, are inclined to set aside the impugned orders of the learned Commissioner (Appeals) and restore the matter back to his file for denovo adjudication on merit. Keeping in view the allegation of the learned Commissioner (Appeals) that in spite of notices being issued time and again to the assessee no one appeared and also taking into the assurance given by the learned counsel for the assessee, Shri Kishore P. Padke, C.A., who appeared before us on behalf of the assessee that proper compliance will be made, we direct the assessee to appear through his authorised representative before the learned Commissioner (Appeals)–5, Mumbai, on 4th April 2016, with a copy of this order for fixation of date of hearing for the aforesaid appeals before the learned
5 M/s. Jolly Steel Industries Pvt. Ltd.
Commissioner (Appeals). We further direct the assessee to appear on the date of hearing fixed by the learned Commissioner (Appeals) and co–operate in finalization of the appeals.
As the entire matter is restored back to the file of the learned Commissioner (Appeals) for denovo adjudication on all the issues, we refrain from adjudicating the grounds raised on merit.
In the result, assessee’s appeals are allowed for statistical purposes.
Pronounced in the open Court on 28th January 2016.