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M/s. Roha Dyechem Pvt. Ltd. A-44-45, MIDC, 2nd Street Marol, Andheri(E) Mumbai-400 092. Vs. ACIT, Central Circle-43 Aayakar Bhavan Mumbai-20.
October, 24th 2013
              IN THE INCOME TAX APPELLATE TRIBUNAL
                           "D" Bench, Mumbai
                Before Shri I.P. Bansal, Judicial Member
                 and Shri Rajendra, Accountant Member

                          ITA No.3928/Mum/2012
                          ITA No.3929/Mum/2012
                   (Assessment years:1999-2000 & 2000-01)

M/s. Roha Dyechem Pvt. Ltd.              ACIT, Central Circle-43
A-44-45, MIDC, 2nd Street                Aayakar Bhavan
                                   Vs.
Marol, Andheri(E)                        Mumbai-20.
Mumbai-400 092.

(Appellant)                                  (Respondent)

P.A. NUMBER :       AAACR 4974 P



                    Assessee by     :    Shri Snehal J. Shah
                    Revenue by      :    Shri K.C. Patnaik

       Date of hearing              :     21/10/2013
       Date of Pronouncement        :     21/10/2013


                                ORDER


PER I.P. BANSAL, JM:

      Both these appeals are filed by assessee. They are directed against
consolidated order dated 30.03.2012 passed by the ld. CIT(A) in respect
of assessment years 1999-00 and 2000-01. The grounds of appeal in
both the appeals are identical except difference in figures. For the sake of
convenience the grounds of appeal taken for assessment year 1999-00
are reproduced:-

         "I. 1) The Commissioner of Income-Tax (Appeals)-38 ("CIT (A)")
             erred in passing an order without affording any opportunity of
             being heard to the appellant.
                                2                ITA No.3928 & 29/M/12
                                                     A.Y.99-00& 00-01


        2) The appellant prays that the order passed by the CIT(A)
       being against the rules of natural justice be quashed as being
       void ab initio and / or illegal.

       Without prejudice to above

 II.   1)The CIT(A) erred in treating the appeal to be infructuous in
       view of the order passed u/s 263.

        2)The appellant prays that the appeal be not treated as
       infructuous.
       Without prejudice to above.

III    1) The Assistant Commissioner of Income Tax ("ACIT") erred in
       passing a non-speaking order u/s 254/147/143(3) of the
       Income Tax Act, 1961 ("The Act").

       2) The appellant prays that it be held that the order passed by
        the ACIT being non-speaking order is liable to be quashed
        as invalid and bad in law.
        Without prejudice to above.

IV     1) The ACIT erred in passing an order u/s 254/147/143(3)
       beyond         the period of limitation.

       2) The appellant prays that the order passed by the ACIT be
       held to       be beyond the limitation period and therefore be
       quashed as bad          in law.
       Without prejudice to above.




 V      1) The ACIT erred in passing an order u/s 143(3) r.w.s. 147 of
        the Act without having the jurisdiction to do so thereby
        rendering the entire proceedings ab initio void, illegal and
        bad in law.

       2) The appellant prays that the reopening proceeding be set
       aside as being in valid and bad in law.
       Without prejudice to above.

VI     1) The ACIT erred in reopening assessment u/s 147 without
       any basis or reason to believe that the income had escaped
       assessment.
                                       3                   ITA No.3928 & 29/M/12
                                                               A.Y.99-00& 00-01


            2) The appellant prays that the reopening proceeding be set
            aside as invalid and bad in law.

      VII   1) The ACIT erred in holding that DEPB license income is a
            receipt      not covered in terms of clause (iia), (iiib) or (iiic) of
            Sec 28 of the Act and consequently, excluding such DEPB
            income while determining        the profits of the business for
            computing deduction u/s 80HHC.
            2) The appellant prays that it be held that DEPB income
            should not be excluded while computing deduction u/s
            80HHC.
            Without prejudice to above.


      VIII. 1) The ACIT erred in reducing the benefit allowable u/s
            80HHC at Rs.14,90,77,378/- instead of Rs.21,77,89,104/-
            by invoking the provision of 80HHC (4B) of the Act.

            2) The appellant prays that the benefit u/s 80HHC be allowed
            in    entirety without reducing the same by deduction
            allowed u/s 80I.
            Without prejudice to above.

       IX   1) The ACIT erred in charging interest u/s 234B of the Act.

            2) The appellant prays that interest charged u/s 234B be
            deleted."



1.1   In assessment year 2000-01 the figures mentioned above are to be
replaced by sums of Rs.7,92,33,574/- and Rs.12,80,15,828/-.


2.    Both the impugned assessment orders are dated 16th December
2010 passed by AO under provisions of sections 254/147/143(3). Earlier
assessment done u/s. 143(3) was subject matter of appeal before ITAT
and the issues were set aside by the Tribunal to the file of Assessing
Officer and in pursuance to such direction given by ITAT the impugned
assessments have been passed by AO. After impugned assessment order
passed by AO, against which Assessee had filed before CIT(A),
                                    4                    ITA No.3928 & 29/M/12
                                                             A.Y.99-00& 00-01


administrative CIT invoked section 263 and order came to be passed u/s.
263 before the adjudication of appeal by ld. CIT(A). The ld. CIT(A) fixed
the hearing of these appeals vide notice dated January 30, 2012 for
hearing   on    15.01.2012.   On    15.01.2012     the     Assessee         sought
adjournment by filing application at receipt counter. These facts are
mentioned by the ld. CIT(A) in para-2. Ld. CIT(A) without mentioning that
whether or not the adjournment request made by the Assessee was
accepted has proceeded to decide the appeal filed by the Assessee on the
basis of two letters of Assessing Officer. In the letter submitted by
Assessing Officer dated 16.01.2012 it was informed that proceedings
u/s. 263 have been initiated against the impugned assessment orders.
Subsequently, AO furnished another letter before ld. CIT(A) which is
dated 30.03.2012, in which he informed that the order u/s. 263 has
already been passed. The final finding given by CIT in the order u/s.263
are also reproduced in the order of ld. CIT(A). After reproducing those
findings ld. CIT(A) has dismissed the appeal filed by the Assessee on the
ground that since vide order dated 16.03.2012 passed u/s. 263 the
assessments     have   been   quashed   with   a   direction         to    reframe
assessments, both the appeals filed by the Assessee have become
infructuous. Therefore, the ld. CIT(A) has dismissed both these appeals
for statistical purposes.


2.1   As it can be found from ground of appeal No.1 presented before us,
the first grievance of the Assessee is that the ld. CIT(A) has disposed off
the appeal filed by the Assessee without affording opportunity of being
heard. Therefore, the order of ld. CIT(A) should be quashed as per rules
of natural justice.


3.    We have heard both parties on this issue. The facts have already
been narrated above. CIT in his order passed u/s. 263 has held the
assessment passed by Assessing Officer is erroneous as well as
                                     5                 ITA No.3928 & 29/M/12
                                                           A.Y.99-00& 00-01


prejudicial to the interests of the Revenue on the ground that Assessing
Officer failed to initiate penalty proceedings u/s. 271(1)(c) in the
impugned order. Based upon the said order ld. CIT(A) has dismissed the
appeals filed by the Assessee on the ground that in view of the order
passed u/s. 263 the appeals files by the Assessee have become
infructuous. We further observe that the ld. CIT(A) before dismissing the
appeal filed by the Assessee has not given any opportunity to the
Assessee and simply on the basis of aforementioned letters filed by AO,
he has dismissed the appeals as having become infructuous. We also
observe that the Assessee is aggrieved by the order passed u/s.263 and
has filed appeals against the orders passed u/s. 263 in respect of both
the assessment years. In our considered opinion, ld. CIT(A) has
committed an error in dismissing the appeals filed by assessee for more
than one reasons. Firstly; he did not provide reasonable opportunity to
the Assessee of being heard. Secondly; the order passed u/s. 263 cannot
come into the way of ld. CIT(A) to dispose the appeal filed by assessee
against   impugned    assessment    orders   as   these   proceedings          are
independent proceedings. If proceedings u/s. 263 are held to be invalid
then the impugned assessment orders will stand and matter would be
required to be adjudicated on merits. The ground on which ld. CIT has
invoked section 263 is entirely different from the grounds raised in the
impugned appeals. The ground on which section 263 is invoked is
relating to non-initiation of concealment penalty which is not subject
matter of appeal before the ld. CIT(A). Therefore, also, the ld. CIT(A) was
not correct in dismissing the appeals filed by the Assessee .





3.1   In view of above discussion, we are of the opinion that the appeals
filed by the Assessee have wrongly been dismissed by the ld. CIT(A). We
direct him to adjudicate the appeal filed by the Assessee on each of the
issue as per provisions of law. Therefore, accepting the first ground, we
restore these appeals to the file of ld. CIT(A) to adjudicate the appeals
                                     6                  ITA No.3928 & 29/M/12
                                                            A.Y.99-00& 00-01


filed by the Assessee in their entirety. Since we are restoring these
appeals to the file of ld. CIT(A) with a direction to re-adjudicate the same,
we do not express any opinion on the other grounds which are subject
matter of the appeal filed before us, as the entire appeals are to be re-
adjudicated by the ld. CIT(A) as per our above mentioned direction.


4.    For statistical purposes, the appeals filed by Assessee, are
considered to be allowed in the manner aforesaid.


Order pronounced in the open court on 21st October, 2013.



             Sd/-                                 Sd/-
         (RAJENDRA)                         (I.P. BANSAL )
     ACCOUNTANT MEMBER                    JUDICIAL MEMBER



Mumbai, Dated: 21/10/2013.
Jv.


Copy to: The Appellant
        The Respondent
        The CIT, Concerned, Mumbai
        The CIT(A) Concerned, Mumbai
        The DR " " Bench

True Copy
                                           By Order

                          Dy/Asstt. Registrar, ITAT, Mumbai.

 
 
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