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Income Tax Appellate Tribunal - Mumbai

Jayant Oil Mills P.Ltd, Mumbai vs Ito 6(1)(1), Mumbai on 10 March, 2017

आयकर अपीलीय अधिकरण "डी" न्यायपीठ मुंबई में।

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH "D", MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 3029/MUM/2014 : (A.Y : 2009-10) M/s Jayant Oil Mills P. Ltd. Vs. Income Tax Officer 6(1)(1) 13, Sitafalwadi Aayakar Bhavan DR Mascarenhas Road Mumbai - 400 021 Mazgaon Mumbai - 400 010 PAN : AAACJ1204C (अपीलार्थी / Appellant) (प्रत्यर्थी / Respondent) अपीलार्थी की ओर से / Appellant by : Shri B.N.Rao प्रत्यर्थी की ओर से / Respondent by : Shri Shishir Dhamija सुनवाई की तारीख / Date of Hearing : 29/12/2016 घोषणा की तारीख Date of Pronouncement : 10/03/2017 आदे श / O R D E R PER C.N.PRASAD (J.M.) :

This appeal is filed by the Assessee against the order of the Ld. CIT (Appeals)-14, Mumbai dated 15.01.2014 for the assessment year 2009-10 arising out of the assessment order passed u/s 143(3) of the Act.

Jayant Oil Mills Pvt. Ltd.

2. At the outset, the Assessee in the grounds of appeal nos. 1 and 2 challenged the order of the Ld. CIT (Appeals) in not giving reasonable opportunity and not admitting the additional evidences filed before the Ld. CIT (Appeals) contending that as the situation was beyond the control of the Assessee to produce the details in the course of assessment proceedings. The Ld. Counsel for the Assessee submits that the additional evidences produced by the Assessee before the Ld. CIT (Appeals) were rejected on the ground that the Assessee did not furnish the details as asked for, books of accounts etc. were not furnished. The Ld. CIT (Appeals) was of the view that the Assessee took the proceedings very lightly and inspite of giving opportunities to the Assessee, the Assessee did not avail the opportunities and at the same time showed great disrespect to the process of law. With these observations, the Ld.CIT (Appeals) refused to admit the additional evidences.

3. The Ld. Counsel for the Assessee submits that Assessee has explained the reasons as to why the evidences could not be produced before the Assessing Officer as the records were took away by the Sales Tax department and Assessee being associate company of Biotor Industries Ltd. which is under CBI investigation and various other legal proceedings by State Bank of India and various consortium banks for recovery of outstanding borrowings were under process. At the time of assessment for investigation purpose, the CBI has taken away main server from Assessee's Mumbai office and Baroda office including various records, accounts and documents of Biotor Industries Ltd and it's group companies. The Ld. 3 Jayant Oil Mills Pvt. Ltd.

Counsel submits that because of all these reasons which are beyond the control of the Assessee, the evidences could not be furnished before the Assessing Officer in the course of assessment proceedings. Therefore, the Ld. Counsel submits that since the Assessee sought adjournment for various genuine reasons, the Ld. CIT (Appeals) should not have come to the conclusion that Assessee is showing great disrespect to the process of law. Therefore, he submits that the matter may be restored to the file of the Ld.CIT (Appeals) for admission of additional evidences and for decision on merits.

4. The Ld. DR has no serious objection in sending the matter back to the Ld. CIT (Appeals) for admitting the additional evidences.

5. We have heard the rival submissions, perused the orders of the authorities. In the course of assessment proceedings when the Assessing Officer required the Assessee to furnish various details it was submitted by the Assessee that there was an investigation going on in the Assessee company as it was an associate of Biotar Industries Ltd., wherein, CBI investigation and the legal proceedings from State Bank of India and its consortium banks for recovery of dues. For the purpose of investigation, CBI has taken away main server and various records, documents etc. of Biotor including its group companies. It was also submitted before us that the records were seized by Sales Tax department also due to which necessary information could not be submitted in the course of assessment proceedings. The Ld. Counsel also brought our notice to the additional 4 Jayant Oil Mills Pvt. Ltd.

evidences and submits that Assessee made some efforts and obtained whatever possible records from various sources and the same are being furnished in the form of paper book containing 205 pages relating to the issues in respect of the additions/disallowances made. We find from the Ld. CIT (Appeals) that the additional evidences were not admitted mainly for the reason that the Ld. CIT (Appeals) is of the view that the Assesse is prolonging the proceedings, not cooperated, not submitted the required details asked for etc. Therefore, the Ld. CIT (Appeals) concluded that admission of additional evidences is not a matter of right and further it was held that there was no sufficient cause for not producing the evidences before the Assessing Officer which in our opinion is not proper and just. No doubt, the Appellate Authority is vested with the discretion whether to admit or reject an application for admission of additional evidences, but the Appellate authority should exercise the discretion judiciously. In this case, the approach of the Ld. CIT(Appeals) in rejecting the petition for admission of additional evidences is not exercised judiciously. In the circumstances taking the totality of the facts into consideration, we restore the issue to the file of the Ld. CIT (Appeals) to consider the petition for admission of additional evidences judiciously and to decide the appeal on merits. The Assessee is directed to cooperate with the proceedings with Ld. CIT (Appeals) and furnish the necessary information as called for. Thus, we restore this appeal to the file of the Ld. CIT (Appeals) and the same be disposed off in accordance with law after given adequate opportunity of being heard.

Jayant Oil Mills Pvt. Ltd.

6. In the result, appeal of the Assessee is allowed for statistical purpose.

Order pronounced in the open court on the 10th day of March 2017.

      Sd/-                                                              Sd/-
RAJESH KUMAR                                                        C.N.PRASAD
ले खा सदस्य /                                                       न्याधयक सदस्य /
ACCOUNTANT MEMBER                                                   JUDICIAL MEMBER

मुुंबई / Mumbai; दिनाुं क / Dated 10/03/2017
LR, SPS

आदे श की प्रधिधलधप अग्रे धिि / Copy of the Order forwarded to :

1. अपीलार्थी / The Appellant

2. प्रत्यर्थी / The Respondent.

3. आयकर आयुक्त(अपील) / The CIT(A), Mumbai.

4. आयकर आयुक्त / CIT

5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुुं बई / DR, ITAT, Mumbai

6. गाडड फाईल / Guard file.

सत्यादपत प्रदत //True Copy// आदे शानसार/ BY ORDER, सहायक पुं जीकार (Asstt. Registrar) आयकर अपीलीय अधिकरण, मुुं बई / ITAT, Mum