1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. INCOME TAX APPEAL NO.2254 OF 2009 Nikunj Eximp Enterprises Pvt. Ltd. ..Appellant. Vs. The Commissioner of Income Tax City I, Mumbai ..Respondent. .... Mr. J.B. Andhyarujinha, Senior Advocate with Ms Aasifa Khan for the Appellant. Mr. Suresh Kumar for the Respondent. ..... CORAM: DR. D.Y. CHANDRACHUD, & J.P.DEVADHAR, JJ. 4th January, 2010. P.C. : 1. Admit. By consent, the appeal is taken up for final hearing. 2. The Income Tax Appellate Tribunal by its judgment dated 31st March, 2009 dismissed an appeal by the assessee against an order of the Commissioner of Income Tax (Appeals). In the appeal by the assessee before this Court the principal contention is that the order of 2 the Tribunal is in violation of the principles of natural justice. In paragraph 3 of the memo of appeal it has been stated that the Appellant was serious in pursuing the appeal which is evident from the fact that an advocate had been appointed, a Vakalatnama was filed and the advocate had appeared on previous occasions. Moreover, it has been stated that a compilation was filed before the Tribunal, a paper book containing 27 different items consisting of 137 pages was filed and written submissions were placed on the record. A compilation of the case law was also stated to be filed before the Tribunal. 2. The Tribunal has noted in paragraph 3 of its judgment that seven adjournments were granted on the request of the advocate appearing for the assessee and that on 1st January, 2009 a final adjournment was granted as a last opportunity when the case was posted to 24th February, 2009. On 24th February, 2009 the advocate appearing on behalf of the assessee was absent when a request for adjournment was made on the ground that he was out of station. The 3 Tribunal proceeded to hear the appeal on merits and declined the request for a further adjournment. 3. Counsel appearing on behalf of the assessee has drawn the attention of the Court to the circumstance that several documents have been placed on the record of the Commissioner of Income Tax (Appeals) in support of the submission of the assessee. These documents included the following : 1. Letters of confirmation of suppliers, which were taken on record at the time of statutory audit. 2. Copies of bank statements showing the entries for payments by account payee cheques made to these suppliers. 3. Ledger account of the supplier from books. 4. Copies of invoices for purchases made from these suppliers. 5. Relevant stock summaries clearly showing the inward for purchases made and corresponding outward for sales effected. 4. The Tribunal while evaluating the merits observed in paragraph 15 of the judgment that apart from six pages, referred to in 4 the judgment the assessee had not furnished any details of the so called purchasers, the details of parties, banks statements and ledger accounts which were supposed to have been filed before the CIT (A). In the absence of any supporting submissions, the contention of the assessee that necessary documents were furnished before the CIT (A) could not be verified by the Tribunal. 5. The Advocate appearing on behalf of the Appellant failed to appear, despite several opportunities before the Tribunal. In our view, the decision of the Tribunal in proceeding ex parte cannot be faulted. But, be that as it may, the interest of justice would warrant a remand of the proceedings to the Tribunal with a view to enable the assessee / Appellant to contest the appeal on merits particularly in view of the contention of the assessee that all relevant documents were produced before the CIT(A). Counsel appearing on behalf of the Appellant has assured the Court that the Appellant would take all necessary steps to diligently proceed with the appeal in accordance with the time schedule that may be fixed by the Tribunal in the event 5 of remand. In these circumstances, it would be appropriate to direct that the appeal before the Tribunal be restored to file and be reheard on merits, subject to an order of costs. Consequently, in order to facilitate a fresh determination the impugned judgment of the Tribunal dated 31st March, 2009 is set aside without the expression of any opinion by the Court on the merits of the rival contentions that arise in the appeal. The Appellant shall co-operate with the Tribunal in ensuring an expeditious disposal of the proceedings upon remand. In the event that the Appellant fails to do so, it will be open to the Tribunal to take necessary steps in the appeal for the expeditious disposal thereof. The Appellant shall deposit with the Respondent an amount of Rs.15,000/- by way of costs, within a period of two weeks from today which shall be a condition precedent. In the event that the Appellant fails to deposit the costs as directed, the Appellant shall be disentitled to the benefit of this order and the dismissal of the appeal by the Tribunal shall stand. In order to facilitate a fresh decision and subject to compliance with the order for the payment of costs, the impugned judgment of the Tribunal dated 31st March, 2009 6 is set aside. ITA 8994/Mum/2004 is restored to the file of the Tribunal. The Appeal is disposed of in these terms. (DR.D.Y.CHANDRACHUD, J.) (J.P.DEVADHAR, J.)