IN INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G , MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No.6333/M/2014 Assessment Year: 2009-10 ITA No.7762/M/2014 Assessment Year: 2009-10 M/s. Ganjam Trading Co. Pvt. ACIT-Circle 6(3), Ltd., R.No.501, Times Towers, Aayakar Bhavan, Top Floor, Vs. M.K. Road, Kamla Mills Compound, Mumbai - 400020 SB Rd., Lower Parel (W), Mumbai 400 013 PAN: AAACG3975H (Appellant) (Respondent) Present for: Assessee by : Miss Pooja Kaku, A.R. Revenue by : Mrs. Vidisha Kalra, D.R. Date of Hearing : 21.09.2016 Date of Pronouncement : 21.09.2016 ORDER Per Sanjay Garg, Judicial Member: above captioned both appeals have been preferred by assessee. First we take up assessee s appeal bearing ITA No.6333/M/2014 agitating exercise of revisional jurisdiction by Commissioner of Income Tax [hereinafter referred to as CIT] under section 263 of Act. ITA No.6333/M/2014 2. This appeal of assessee is barred by limitation of 168 days. affidavit of Shri Rajender Prasad Tyagi, Director of assessment company has been filed wherein reasons for delay has been mentioned and condonation of delay in filing appeal has been prayed for. It has been stated in said affidavit that assessee did not have any professional 2 ITA No.6333/M/2014 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 company and working directors were not aware of legal implications. It was only during half yearly review by tax head of group company that non filing of appeal before ITAT came to notice. Ld. A.R. has further invited our attention to impugned order to state that no proper opportunity of hearing was given to assessee while passing impugned order by Ld. CIT under section 263 of Act and that same is ex-parte order. She has also relied upon decision of Hon ble Supreme Court in case of Collector, Land Acquisition vs. M/s. Kateji & Others 1987 AIR 1353 and has therefore contended that if delay is not condoned in this case, it would amount to legalizing injustice carried out to assessee on technical grounds whereas as per law laid down by Hon ble Supreme Court, interest of justice will be served in removing injustice carried out to assessee. Considering peculiar facts of case that there were no employees of assessee company and there was no full time director or managing director and also considering contents of impugned order, in our view, in peculiar facts and circumstances of case, interest of justice will be well served, if delay in filing of these appeals is condoned. We order accordingly. Now we proceed to come to merits of case. 3. Ld. CIT, vide order dated 26.02.14, has set aside original assessment order passed under section 143(3) of Act dated 30.12.2011 and has restored matter to AO (hereinafter referred to as AO) for denovo assessment. At outset, Ld. A.R. has brought our attention to impugned order and has contended that no proper opportunity of hearing has been given by Ld. CIT while passing impugned order. She has specifically invited our attention to para 3 of impugned order to show that only one opportunity of hearing i.e. on 25.02.14 was given to assessee to 3 ITA No.6333/M/2014 ITA No.7762/M/2014 M/s. Ganjam Trading Co. Pvt. Ltd. advance submissions against invocation of jurisdiction under section 263 of Act. 4. We have gone through impugned order. We find that Ld. CIT has specifically written that assessee was given hearing on 25.02.14 at 11:30 A.M., however, no one attended hearing on appointed date or submitted any written submissions. It has been further mentioned that as matter was getting barred by limitation and there was lack of seriousness, therefore he decided to complete pending revision proceedings. Ld. CIT, thereafter, set aside assessment order and directed for denovo assessment. Ld. A.R. has further invited our attention to affidavit of Shri Rajender Prasad Tyagi, Director of assessee company wherein it has been specifically deposed that notice dated 30.01.2014 issued under section 263 of Act was received by assessee only on 24.02.2014 fixing date of hearing on 25.02.2014. That he immediately forwarded said notice to Chartered Accountant of company and request for adjournment vide letter dated 25.02.2014 was carried personally by Chartered Accountant Ms. Heena Dagriya. However, Ld. CIT refused to accept letter and did not give any adjournment. Thereafter, Ld. CIT passed impugned revision order. Under circumstances no proper opportunity was given to assessee to represent its case. It seems that impugned order under section 263 has been passed by Ld. CIT in haste as it has also been pointed out in order that matter was getting barred by limitation. In view of this, both representatives of parties have fairly agreed that they have no objection, if matter is restored to Ld. CIT with direction to pass fresh order on merits after giving proper and reasonable opportunity of hearing to assessee. We accordingly restore this matter to file of Ld. CIT to pass fresh order after giving reasonable opportunity of hearing to assessee. 4 ITA No.6333/M/2014 ITA No.7762/M/2014 M/s. Ganjam Trading Co. Pvt. Ltd. 5. In result, this appeal of assessee is treated as allowed for statistical purposes. 6. Now coming to second appeal bearing ITA No.7762/M/2014. ITA No.7762/M/2014 7. This appeal is preferred against order of Ld. CIT(A) dated 26.02.2014. We find that appeal of assessee against assessment order dated 30.12.2011 under section 143(3) of Act has been dismissed by Ld. CIT(A) on ground that since assessment order has been set aside by Ld. CIT under section 263 of Act, hence, impugned assessment order did not survive and therefore appeal filed by assessee had become infructuous. 8. Since we have already restored matter in relation to order passed by Ld. CIT under section 263 of Act for decision afresh, hence under circumstances, till fresh order by Ld. CIT in set aside proceedings relating to invocation of section 263 of Act is passed, assessment order dated 30.12.2011 passed by AO under section 143(3) of Act survives. Hence, impugned order of Ld. CIT(A) in this appeal is set aide and matter is restored to file of Ld. CIT(A) for deciding same on merits in accordance with law. 9. In result, both appeals of assessee are treated as allowed for statistical purposes. Order pronounced in open court on 21.09. 2016. Sd/- Sd/- (Ramit Kochar) (Sanjay Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 21.09.2016. Kishore, Sr. P.S. 5 ITA No.6333/M/2014 ITA No.7762/M/2014 M/s. Ganjam Trading Co. Pvt. Ltd. Copy to: Appellant Respondent CIT, Concerned, Mumbai CIT (A) Concerned, Mumbai DR Concerned Bench //True Copy// [ By Order Dy/Asstt. Registrar, ITAT, Mumbai. M/s. Ganjam Trading Co. Pvt. Ltd. v. ACIT-Circle 6(3), Mumbai