M/S. BLOOMDALE FINVEST P. LTD., MUMBAI V. ITO -12(1)(3), MUMBAI, MUMBAI

ITA 1251/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7119 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 24-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C SELVAMANI
• Assessee Lawyers: NEELAM C JADHAV
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 251; 147; 68; 148; 144

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) I.T.A. NO. 1251/MUM/2020 (ASSESSMENT YEAR 2011-12) M/S. BLOOMDALE FINVEST PRIVATE LIMITED B/208, SHANTIVAN II, RAHEJA TOWNSHIP, MALAD EAST MUMBAI-400 097. PAN : AAACB3459R VS. ITO-12(1)(3) ROOM NO. 145A AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI NEELAM C. JADHAV DEPARTMENT BY SHRI K.C. SELVAMANI DATE OF HEARING 24 .0 8 .2021 DATE OF PRONOUNCEMENT 25.08.2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A) DATED 29.11.2019 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L. AT THE OUTSET GROUND NO. 1 IS PERTAINING TO AN EX-PARTE ORDER WHEREIN FA ILURE OF NATURAL JUSTICE HAVE BEEN CLAIMED. THE SAID GROUND READ AS UNDER : 1. EX-PARTE ORDER SANS MERITS - FAILURE OF NATURAL JUSTICE - ORDER IMPUGNED MAY BE QUASHED THE LOWER AUTHORITIES ERRED IN NOT GRANTING ADEQUATE O PPORTUNITY AND ENTIRELY OVERLOOKING THE FACTUAL MERITS OF THE APPELLANT WHILE DETERMINING THE ASSESSED INCOME AT AN UNACCEPTABLE HIGH PITCHED FIGUR E; THEREFORE, WHEN THE IMPUGNED ORDER IS PASSED ON THE FAILURE OF NATURAL J USTICE WITH INSUFFICIENT OPPORTUNITIES, THE SAME BECOMES PERVERSE AND THE ORDE R MAY BE VACATED OR DESERVES TO BE SET-ASIDE TO FILE OF THE ASSESSING OFF ICER WITH DIRECTION. 3. OTHER GROUNDS RELATE TO CHALLENGE OF JURISDICTIO N AND ADDITION UNDER SECTION 68 OF THE I.T. ACT FOR CREDIT OF SHARE CAPI TAL OF RS. 32,74,29,161/-. M/S. BLOOMDALE FINVEST PRIVATE LIMITED 2 4. WE NOTE THAT UPON ASSESSEES APPEAL IN THIS CASE LEARNED CIT(A) IN A COMPLETELY NON-SPEAKING ORDER WITHOUT DISCUSSING ON MERITS OF THE APPEAL AND WITHOUT CONDONING LEGAL DELAY OF MERE 19 DAYS DISMI SSED THE APPEAL. HIS ORDER MAY BE REFERRED AS UNDER :- 3.1 FOR THE A.Y. 2011-12, THE APPELLANT FILED ITS RE TURN OF INCOME ON 31.03.2013 DECLARING TOTAL INCOME OF RS.3,19,340/-. T HE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND THE ASSESSMENT ORDER WAS PASSED ON 29.03.2014. SUBSEQUENTLY, THE ASSESSING OFFICER RECEI VED CERTAIN INFORMATION FROM DGIT(INV.), UNIT-8(L), MUMBAI. BASED ON THE INF ORMATION RECEIVED, THE AO REOPENED THE ASSESSMENT U/S 147 OF THE ACT AND ISS UED A NOTICE U/S 148 OF THE ACT. EVENTUALLY, THE ASSESSMENT WAS COMPLETED U/ S 144 R.W.S 147 OF THE ACT ON 11.12.2018 DETERMINING TOTAL INCOME OF THE APPELLANT AT RS. 38,40,22,100/-. AGGRIEVED BY THE ASSESSMENT ORDER, THE APPELLANT HAS FILED APPEAL. 4. HEARINGS: 4.1 IN THE COURSE OF APPELLATE PROCEEDINGS, NOTICES O F HEARING WERE ISSUED AND SENT BY SPEED POST. THE NOTICES WERE SERVED UPON THE APPELLANT AND ACKNOWLEDGEMENT HAS BEEN PLACED ON RECORD. THE DETAIL S OF HEARING SCHEDULED ARE TABULATED AS UNDER: SR. NO. DATE OF HEARING WHETHER NOTICE WAS SERVED REMARKS WHETHER APPELLANT/AR APPEARED 1. 18.10.2019 YES NONE ATTENDED. 2. 07.11.2019 YES NONE ATTENDED. 3. 22.11.2019 YES NONE ATTENDED. 4.2 THE APPELLANT DID NOT APPEAR FOR ANY OF THE HEARINGS. THEREFORE, IT APPEARS THAT THE APPELLANT IS NOT INTERESTED IN PROSEC UTING THE APPEAL. 5. DELAY IN FILING APPEAL AND REQUEST FOR CON DONATION: 5.1 ON GOING THROUGH THE FORM NO. 35, IT IS SEEN THAT T HE DEMAND NOTICE WAS SERVED ON THE APPELLANT ON 18.12.2018. THEREFORE, THE APPELLANT WAS REQUIRED TO FILE THE APPEAL ON OR BEFORE 17.01.2019. HOWEVER, THE APPELLANT HAS FILED THE APPEAL ON 09.02.2019. THUS, THERE WAS A DELAY OF ABOUT 19 DAYS IN FILING OF APPEAL. 5.2 IN COLUMN 15 OF FORM NO. 35, THE APPELLANT WAS R EQUIRED TO FURNISH THE GROUND FOR CONDONATION OF THE DELAY. HOWEVER, THE APP ELLANT HAS NOT DONE SO. INSTEAD, IN COLUMN 15 THE APPELLANT HAS MERELY STATED AS UNDER: 'TO BE SUBMITTED AT THE TIME OF HEARING'. M/S. BLOOMDALE FINVEST PRIVATE LIMITED 3 5.3 AS MENTIONED IN PARA 4.1 TO 4.2 ABOVE, THE APPELLA NT DID NOT APPEAR FOR ANY OF THE HEARINGS. THE APPELLANT HAS ALSO NOT FURNI SHED ANY WRITTEN SUBMISSION EITHER. THUS THE APPELLANT HAS FAILED TO EXP LAIN WHY THE DELAY IN FILING THE APPEAL SHOULD BE CONDONED. THEREFORE, I D ECLINE TO CONDONE THE DELAY. ACCORDINGLY, THE APPEAL IS NOT ADMITTED. 5. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BE FORE US. 6. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RECORD. WE FIND THAT LEARNED CIT(A) HAS COMPLETELY MISLED HIMSELF AND MERE DELAY OF 19 DAYS, DID NOT MANDATE HIM TO DISMISS TH E APPEAL IN LIMINE AND THAT ALSO WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEA RD. MOREOVER, LEARNED CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-PROSECUT ION OF APPEAL BY THE ASSESSEE, AS SECTION 251 WHICH DEALS WITH POWER OF LEARNED CIT(A) DOES NOT PROVIDE FOR DISMISSAL OF THE APPEAL FOR NON-PROSECU TION. MOREOVER PROPOSITION THAT APPEAL CANNOT BE DISMISSED FOR NON-PROSECUTION WITHOUT SPEAKING ORDER ON MERITS IS SUPPORTED BY FOLLOWING CASE LAWS :- A. CIT VS. PREAMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR 302(BOM) B. CIT VS. S. CHENNAIPPA MUDALIAR (1969) 74 ITR 1(S C) 7. MOREOVER IT IS SETTLED LAW THAT EVEN ADMINISTRAT IVE ORDERS HAVE TO BE CONSISTENT WITH RULES OF NATURAL JUSTICE AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF SAHARA INDIA FINANCIAL CORPORATION LTD. (300 ITR 403). 8. IN THE BACKGROUND OF THE AFORESAID DISCUSSION A ND PRECEDENT, WE CONDON THE DELAY IN FILING THE APPEAL BEFORE LEARNE D CIT(A) AND DIRECT THE LEARNED CIT(A) TO PASS A SPEAKING ORDER ON THE MERI TS OF THE CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 25.8.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 25/08/2021 M/S. BLOOMDALE FINVEST PRIVATE LIMITED 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI