EVERGREEN INFRASTRUCTURES,MUMBAI V. ACIT, CIRCLE 31(1), MUMBAI

MA 37/MUM/2025

AI Insights

The case involves M/s. Evergreen Infrastructures, which faced an addition of Rs.2,84,36,000 to their income, as per the assessment order dated 21.03.2016 under sections 144 and 147 of the Income Tax Act. The Assessee's appeal to the CIT(A) was dismissed, leading to an ex-parte decision by the Tribunal due to non-receipt of hearing notice. The Assessee filed a miscellaneous application challenging the ex-parte order, citing the return of the notice as 'insufficient address' and the lack of email communication. The Tribunal acknowledged the failure in notice delivery and recalled the ex-parte order, scheduling a new hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 312495 (ITAT-MUMBAI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN UNAVEKAR; LD.
• Assessee Lawyers: VIMAL PUNMIYA; LD
• Section: 147; 148; 144

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “E”, MUMBAI BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER MA No.37/Mum/2025 (Arising out of ITA No.3171/M/2024) Assessment Year: 2012-13 & MA No.36/Mum/2025 (Arising out of ITA No.3170/M/2024) Assessment Year: 2013-14 M/s. Evergreen Infrastructures, 12th Floor, E.E. Heights, 12th Floor, Beside KFC, SV Road, Jogeshwari West, Mumbai, Maharashtra-400 102 PAN:AACFE6568R Vs. Asstt. Commissioner of Income Tax, Circle 31(1), C-11, 7th Floor, Pratyakshakar Bhavan, Bandra Kurla Complex (E), Mumbai- 400051 (Appellant) (Respondent) Present for: Assessee by : Shri Vimal Punmiya, Ld. C.A. Revenue by : Shri Kiran Unavekar, Ld. Sr. D.R. Date of Hearing : 21.03.2025 Date of Pronouncement : 28.04.2025 O R D E R Per : Narender Kumar Choudhry, Judicial Member: Both the miscellaneous applications emanates from the composite order dated 19.08.2024 passed in the captioned appeal nos.3171 & 3170/M/2024 and therefore the same were heard together and are being disposed of by this composite order by taking into consideration MA No.37/M/2025 as a lead case and MA No.37/Mum/2025 & MA No.36/Mum/2025 M/s. Evergreen Infrastructures 2 result of the same would be mutatis mutandis applicable to both the applications under consideration. 2. In the instant case, the case of the Assessee was reopened u/s 147 of the Act by issuing notice dated 13.06.2014 u/s 148 of the Act and ultimately culminated into passing the assessment order dated 21.03.2016 u/s 144 r.w.s. 147 of the Act, by which the addition of Rs.2,84,36,000/- has been made by the Assessing Officer (AO). 3. The Assessee, being aggrieved, challenged the said addition before the then Ld. CIT(A), who vide order dated 21.05.2024 affirmed the aforesaid addition by dismissing the appeal of the Assessee and therefore the Assessee, being aggrieved, preferred second appeal before this Tribunal. As the notice sent through post for the date of hearing on 07.08.2024, at the address mentioned in form no.36, has been returned back by the postal authority with remarks “insufficient address” and therefore in the constrained circumstances, the appeal of the Assessee was decided vide order dated 19.08.2024 in ITA No.3171/ & 3170/M/2024 as ex-parte. 4. The Assessee, being aggrieved, challenged the order dated 19.08.2024 passed by the Tribunal, by filing instant miscellaneous application. 5. The Assessee, before us, has claimed that admittedly the notice sent to the Assessee was returned back by the postal department and the ex-parte order was passed on the very second date of hearing without affording further opportunity. Even otherwise no communication was sent through email to the Assessee, as it is legitimate expectation that in case of failing of receiving notice through postal delivery, the notice can be sent though email. The Assessee, therefore, on the aforesaid facts and MA No.37/Mum/2025 & MA No.36/Mum/2025 M/s. Evergreen Infrastructures 3 circumstances requested this Court to offer one last and final opportunity to represent its case, by recalling of the order dated 19.08.2024. 6. On the contrary, the Ld. D.R. refuted the claim of the Assessee. 7. Heard the parties and perused the material available on record. Admittedly, the notice for the date of hearing on 07.08.2024 was sent to the Assessee through registered post, however, the same was returned back by the postal department with the remarks “left”/”23.11.2024” meaning thereby the Assessee was not situated at the address mentioned in form no.36. However, it is a fact that no email communication was sent to the Assessee. The Assessee, on being asked, has submitted that the Assessee is still situated at the address mentioned in form no.36 and the email mentioned in form no.36 is also correct. 8. Whatsoever may be, at this stage, we are not indulging into the controversy “whether the postal department has returned back the notice sent to the Assessee with the remarks “left” as correctly or not”, however, considering the peculiar facts and circumstances in totality, as the issue involved in the instant appeal remained to be adjudicated in its right perspective and proper manner, specifically in the absence of relevant reply/submission/documents, since the Assessee has failed to file the same due to non-service of notice as alleged and therefore for the just and proper decision of the case, we are inclined to recall the ex-parte order dated 19.08.2024. Thus, the order dated 19.08.2024 is recalled and the appeal of the Assessee is directed to be fixed for hearing on 20.05.2025 before regular Bench. MA No.37/Mum/2025 & MA No.36/Mum/2025 M/s. Evergreen Infrastructures 4 9. Thus, in view of our order in MA No.37/M/2025, both the miscellaneous applications are allowed in the same terms. Order pronounced in the open court on 28.04.2025. Sd/- Sd/- (GIRISH AGRAWAL) (NARENDER KUMAR CHOUDHRY) ACCOUNTANTMEMBER JUDICIAL MEMBER * Kishore, Sr. PS Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai. "