DESTINY STAR (INDIA) PRIVATE LIMITED,SURAT V. DCIT-CENTRAL CIRCLE 8(4), MUMBAI, MUMBAI

ITA 6430/MUM/2024

AI Insights

The case involves Destiny Star (India) Private Limited appealing against the order of the Commissioner of Income Tax (Appeals) 50, Mumbai, which was passed ex-parte. The appeal contested various issues including the non-credit of tax deducted at source, incorrect charging of interest under sections 234A and 234B, and the validity of the reassessment notice under section 148 among others. The Tribunal noted that similar cases for adjacent assessment years had been restored to the CIT(A) for a fresh decision, and thus decided to follow the same procedure in this case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 33208 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2018-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Opportunity of cross examination; Audi alteram partem; Tangible material
• Section: 147; 148; 143(3); 143(2); 234B

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH MUMBAI BEFORE SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA No. 6430/MUM/2024 Assessment Year: 2018-19 Destiny Star (India) Private Limited, Office No. 203, Tulsi Bldg, Somnath Mahadev Ni Sheri, Mahidharpura Gujarat–395003 (PAN : AAFCD2189R) Vs. DCIT-Central Circle 8(4), Mumbai Aayakar Bhavan, Maharshi Karve Road, New Marine Lines, Churchgate Mumbai-400020 (Appellant) (Respondent) Present for: Assessee : Mr. Pankaj Jaiswal Revenue : Smt. Sanyogita Nagpal, CIT DR Date of Hearing : 06.02.2025 Date of Pronouncement : 11.02.2025 O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. CIT(A), Commissioner of Income Tax, Appeal CIT(A) 50, Mumbai, vide order no. ITBA/APL/S/250/2024-25/1069818481(1), dated 21.10.2024 passed against the assessment order by Assistant Commissioner of Income Tax Central Circle 8(4), Mumbai, u/s. 143(3) r.w.s.147 of the Income-tax Act (hereinafter referred to as the “Act”), dated 26.03.2023 for Assessment Year 2018-19. 2. Grounds taken by the assessee are reproduced as under: “1. On the facts and circumstances of the case and law, the Ld. CTT(A) erred in not giving credit of tax deducted at source. 2 ITA No. 6430/Mum/2024 Des\u0014ny Star (India) Pvt. Ltd., AY 2018-19 2. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in charging interest under section 234A and 234B of Income Tax Act, 1961. 12. On the facts and circumstances of 2 the case and law, the Ld. CIT(A) erred in levying penalty under section 272A(1)(d) of Income Tax Act, 1961. 13. Appellant craves leave to add further grounds or to amend or alter the existing grounds of appeal on or before the date of hearing. 3. On the facts and circumstances of the case and law, the Ld. 3 CIT(A) erred in dismissing the appeal without adjudicating the grounds of appeal. 4. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming issuance of notice under section 148, even though there is no new tangible material for reopening. 5. On the facts and circumstances of the case and law, the Ld. CIT(A) failed to considered that the issue which is subject matter of appeal cannot be considered again in reassessment proceeding. 6. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming validity of proceeding under section 148 initiated without obtaining proper sanction from appropriate authority under section 151 of Income Tax Act, 1961. 7. On the facts and circumstances of the case and law, the Ld. CIT(A) failed to considered that the assessment order passed u/s 7 147 of Income Tax Act, 1961 dated 26.03.2023 without issuing notice u/s 143(2) makes the order itself bad-in-law and required to be quashed. 8 On the facts and circumstances of the case and law, the Ld. CIT(A) erred in considering the fact that when books of account have already been rejected, then no other addition is permissible on basis of same books of account. 9. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming addition of Rs. 29,60,09,962/-without mentioning any section for addition assuming commission income of 5% of the total purchases without considering the fact that the transactions of appellant were genuine and bonafide. 10. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming addition for the commission income merely relying on the statement recorded without considering the fact the statements were already retracted hence having no evidentiary value. 11. The facts and circumstances of the case and law, the Ld. CIT(A) failed to consider the fact that assessment order passed without providing the opportunity of cross examination to the appellant which is in gross violation of principal of Audi Alteram Partem rendering the order to be bad in law liable to be quashed” 3 ITA No. 6430/Mum/2024 Des\u0014ny Star (India) Pvt. Ltd., AY 2018-19 3. At the outset, ld. Counsel submitted vide letter dated 03.02.2025 that assessee is aggrieved by the ex-parte order passed by ld. CIT(A). The reasons for not able to respond to the notice sent by the ld. CIT(A) are that assessee could not appoint any Chartered Accountant at that time and case was fixed for hearing on August and September 2024 on two occasions. In the meantime assessee was looking for Chartered Accountant /authorized representative to represent the case. 4. Ld. CIT(A) had passed the ex-parte order by taking into account statement of fact and observation and finding of Ld. AO in the impugned assessment order 5. On identical set of facts and circumstances, other five assessment years of the assessee namely A.Y. 2016-17, 2017-18, 2018-19, 2019- 20, 2020-21 had come up before the Coordinate Bench in ITA no. 6354/Mumbai/24, 6356/Mumbai/24, 6365/Mumbai/24, 6366/Mumbai/24, 6367/Mumbai/24, whereby the matters were restored back to the file of ld. CIT(A) to decide the issue afresh in accordance with law after giving due opportunity of hearing to the assessee. This consolidated order for the five assessment years was pronounced on 30.01.2025. 6. Since in the present case of the assessee, identical facts and circumstances exists, we find it proper to restore this appeal also back to the file of Ld. CIT(A) for meritorious de novo adjudication in accordance with law after giving reasonable opportunity of being heard to the assessee. Accordingly, appeal filed by the assessee is allowed for statistical purposes. 4 ITA No. 6430/Mum/2024 Des\u0014ny Star (India) Pvt. Ltd., AY 2018-19 7. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 11 February 2025 Sd/- Sd/- (Rahul Chaudhary) (Girish Agrawal) Judicial Member Accountant Member Dated: 11 February 2025 Poonam Mirashi, Stenographer Copy to : 1 The Appellant 2 The Respondent 3 DR, ITAT, Mumbai 4 5 Guard File CIT BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai "