Tasty Bite Eatables Ltd. v. Income Tax Officer Ward–2(2)(3), Mumbai
[Citation -2016-LL-1019-177]

Citation 2016-LL-1019-177
Appellant Name Tasty Bite Eatables Ltd.
Respondent Name Income Tax Officer Ward–2(2)(3), Mumbai
Court ITAT-Mumbai
Relevant Act Income-tax
Date of Order 19/10/2016
Assessment Year 2005-06
Judgment View Judgment
Keyword Tags opportunity of being heard • transfer pricing officer • reasonable opportunity • associated enterprise • brought forward loss • plant and machinery • ex-parte order
Bot Summary: In ground no.1, with its sub grounds, assessee has challenged the ex parte order passed by the learned Commissioner to be in violation of principles of natural justice. The learned Commissioner disposed off assessee s appeal ex parte by the impugned order by confirming the addition made by the Assessing Officer. Learned Authorised Representative challenging the dismissal of appeal ex parte submitted, in the course of hearing before the learned Commissioner on 26th December 2014, the assessee had informed the learned Commissioner that assessment jurisdiction of the assessee in the meanwhile has been transferred to Pune sought clarification whether the appeal will also be transferred to Pune. The learned Departmental Representative on the other hand justifying the order of the learned Commissioner submitted, in spite of 12 opportunities being granted to the assessee, he did not represent the case the learned Commissioner was compelled to dispose off the appeal ex parte. The limited grievance of the assessee before us is, the learned Commissioner without affording due opportunity of being heard to the assessee had disposed off the appeal ex parte confirming the additions made. Considering the nature of assessee s grievance, we are of the view, in the interest of fairplay and justice one more opportunity of hearing should be granted to the assessee for explaining its case before the learned Commissioner. In view of the aforesaid, we set aside the impugned order of the learned Commissioner and restore the matter back to his file for denovo adjudication of the issues raised 6 Tasty Bite Eatables Ltd. by the assessee on merit after providing reasonable opportunity of being heard to the assessee.


IN INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA no. 2962/Mum./2015 ( Assessment Year : 2005 06) Tasty Bite Eatables Ltd. 204, Mayfair Towers . Wakdewadi, Shivaji Nagar Appellant Pune 411 005 PAN AAACT2317A v/s Income Tax Officer Ward 2(2)(3), Aayakar Bhawan Respondent 101, M.K. Road, Mumbai 400 020 Assessee by : Shri Ketan Ved Revenue by : Shri N.K. Chand Date of Hearing 03.10.2016 Date of Order 19.10.2016 ORDER , PER SAKTIJIT DEY, J.M. Aforesaid appeal by assessee is directed against order dated 19th February 2015, passed by learned Commissioner (Appeals) 58, Mumbai, pertaining to assessment year 2005 06. Grounds raised by assessee are reproduced hereunder: 2 Tasty Bite Eatables Ltd. 1:1 Commissioner of Income-tax (Appeals) has erred in passing ex-parte order in violation of principles of natural justice. 1:2 Appellant submits that considering facts of its case and law prevailing on subject ex-parte order passed by Commissioner of Income-tax (Appeals) is bad in law and ab-initio void and hence ought to be struck down. 1:3 Commissioner of Income-tax (Appeals) should be directed to re-hear appeal denovo. Without prejudice to foregoing: 2:0 Re.: Adjustment of Rs.1,82,00,000/- on account of sales made to Associated Enterprise ("AE"). 2:1 Commissioner of Income-tax (Appeals) has erred in upholding action of Assessing Officer,' Transfer Pricing Officer in making upward adjustment of Rs. 1,82,00,000/- to total income of Appellant by holding that international transactions relating to sales made by Appellate to its AE are not at arm's length. 2:2 Appellant submits that considering facts and circumstances of its case and law prevailing on subject international transactions relating to sales made by Appellant to its AE were at arm's length and hence no adjustment in respect thereof was called for and stand taken by Assessing Officer! Transfer Pricing Officer in this respect is illegal, incorrect, erroneous and unjust and Commissioner of Income-tax (Appeals) ought to have held as such. 2:3 Appellant submits that Assessing Officer be directed to delete upward adjustment of Rs. 1.82,00,000/- made by him to Appellant's total income and to re compute its total income and tax liability accordingly. 2:4 Without prejudice to aforesaid, Appellant submits that adjustment, if any, should be restricted to value of 'international transactions' with AE's and cannot be made to value of total export sales' made by Appellant. 3:0 Disallowing 50 of depreciation claimed on additions made to plant and machinery and building during year: 3:1 Commissioner of Income-tax (Appeals) has erred in upholding action of Assessing Officer of disallowing 50% of depreciation on additions made to plant and machinery and 3 Tasty Bite Eatables Ltd. building during year under consideration. 3:2 Appellant submits that considering facts and circumstances of its case and law prevailing on subject disallowance made by Assessing Officer of depreciation on additions made to plant and machinery and building is misconceived, erroneous, illegal and Commissioner of Income- tax (Appeals) ought to have held as such. 3:3 Appellant submits that Assessing Officer be directed to delete disallowance so made by him and to re-compute its total income accordingly. 4:0 Re.: General 4:1 Appellant craves leave to add, alter, amend, substitute and/or modify in any manner whatsoever modify all or any of foregoing grounds of appeal at or before hearing of appeal. 2. Ground no.4, being general in nature is not required to be adjudicated. 3. In ground no.1, with its sub grounds, assessee has challenged ex parte order passed by learned Commissioner (Appeals) to be in violation of principles of natural justice. 4. Brief facts are, assessee company filed its return of income on 31st October 2005, declaring total income at ` nil. Assessment in case of assessee was completed vide order dated 29 th December 2008, determining income at ` nil after set off of brought forward loss. However, though, income was determined at ` nil, after sett off of brought forward loss, Assessing Officer made certain additions viz., ` 1,82,00,000, on account of transfer pricing 4 Tasty Bite Eatables Ltd. adjustment and disallowance of part depreciation which had effect of reducing loss claimed by assessee. Being aggrieved of assessment order so passed, assessee preferred appeal before first appellate authority. 5. learned Commissioner (Appeals) disposed off assessee s appeal ex parte by impugned order by confirming addition made by Assessing Officer. 6. Learned Authorised Representative challenging dismissal of appeal ex parte submitted, in course of hearing before learned Commissioner (Appeals) on 26th December 2014, assessee had informed learned Commissioner (Appeals) that assessment jurisdiction of assessee in meanwhile has been transferred to Pune, hence, sought clarification whether appeal will also be transferred to Pune. He submitted, in connection with said issue, learned Commissioner (Appeals) called for certain documents from assessee and appeal was adjourned from time to time. However, last notice issued by learned Commissioner (Appeals) on 28th January 2015 fixing date of hearing to 9th February 2015 was never served upon assessee. He, therefore, submitted, disposal of assessee s appeal ex parte without affording fair opportunity of being heard to assessee is improper and in violation of natural justice. Hence, order should be set aside and 5 Tasty Bite Eatables Ltd. matter be restored back to file of learned Commissioner (Appeals) for allowing opportunity of hearing to assessee. 7. learned Departmental Representative on other hand justifying order of learned Commissioner (Appeals) submitted, in spite of 12 opportunities being granted to assessee, he did not represent case, hence, learned Commissioner (Appeals) was compelled to dispose off appeal ex parte. 8. We have considered submissions of parties and perused material available on record. It is evident from material placed before us that assessee on account of change of its assessment jurisdiction to Pune, was having doubt whether appeal would be heard by incumbent Commissioner (Appeals) or to be transferred to Pune, hence, sought clarification. limited grievance of assessee before us is, learned Commissioner (Appeals) without affording due opportunity of being heard to assessee had disposed off appeal ex parte confirming additions made. Considering nature of assessee s grievance, we are of view, in interest of fairplay and justice one more opportunity of hearing should be granted to assessee for explaining its case before learned Commissioner (Appeals). In view of aforesaid, we set aside impugned order of learned Commissioner (Appeals) and restore matter back to his file for denovo adjudication of issues raised 6 Tasty Bite Eatables Ltd. by assessee on merit after providing reasonable opportunity of being heard to assessee. We also direct assessee to co operate with learned Commissioner (Appeals) in finalizing proceedings. 9. In view of our above decision, grounds raised by assessee on merits have became infructuous, hence, not required to be adjudicated. 10. In result, assessee s appeal is partly allowed for statistical purposes. Order pronounced in open Court on 19.10.2016 Sd/- Sd/- RAJENDRA SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.10.2016 Copy of order forwarded to: (1) Assessee; (2) Revenue; (3) CIT(A); (4) CIT, Mumbai City concerned; (5) DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary (Dy./Asstt. Registrar) ITAT, Mumbai Tasty Bite Eatables Ltd. v. Income Tax Officer Ward2(2)(3), Mumbai
Report Error