MAHARASHTRA STATE POWER GENERATION CO. LTD, MUMBAI V. THE DY.CIT -14(2)(2) , MUMBAI

ITA 1753/MUM/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4068 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; Unabsorbed depreciation
• Section: 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI BEFORE SHRI VIKAS AWASTHY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., Prakashgad, 2 nd Floor, Anant Kanekar Marg Bandra (E), Mumbai – 400051 PAN: AAECM2935R v. DCIT – 14(2)(2) Aayakar Bhavan, M.K. Road Mumbai - 400020 (Appellant) (Respondent) Assessee by : Shri Ketan Ved Department by : Ms. Vranda U. Matkarni Date of Hearing : 23.08.2022 Date of Pronouncement : 23.08.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short “Ld.CIT(A)”] dated 05.05.2022 for the Assessment Year 2008-09. 2. The return was filed by the assessee on 14.10.2008 declaring total income of ₹.Nil after claiming set off of brought forward losses and 2 ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., unabsorbed depreciation. The Assessment Order u/s. 143(3) of Income- tax Act, 1961 (in short “Act”) was passed on 29.12.2010 computing the taxable income at ₹.4,46,57,61,440/- after making the total disallowance of ₹.4,59,38,000/-. Aggrieved by the order, assessee preferred an appeal before the CIT(A)-21 Mumbai, and Ld.CIT(A) decided the appeal. The effect of the order of CIT(A) was given on 20.09.2011. Subsequently, the assessment was reopened after recording the reasons and notice u/s. 148 of the Act was issued and served on the assessee. In response AR of the assessee attended and submitted the relevant information as called for. The re-assessment u/s. 143(3) r.w.s. 147 of the Act was completed on 28.03.2016. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and Ld.CIT(A) passed the order dated 05.05.2022. Against the above order assessee is in appeal before us raising following grounds in its appeal: - “1:0 Re: Dismissing the appeal filed by the Appellant: 1:1 The Commissioner of Income-tax (Appeals) has erred in perfunctorily dismissing the appeal filed by the Appellant in violation of principles of natural justice. 1:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject the Commissioner of Income-tax (Appeals) ought to have granted a meaningful opportunity of hearing to the Appellant. 1:3 The submits that considering the facts and circumstances of its case and the law prevailing on the subject the Commissioner of Income-tax (Appeals) ought to have decided the appeal on merits. 3 ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., Without prejudice to the above: 2:0 Re: Validity of re-assessment proceedings: 2:1 The Assessing Officer has erred in re-opening the Appellant's assessment u/s. 148 of the Income-tax Act, 1961.. 2:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject the re-opening u/s. 148 was in excess of jurisdiction, is also otherwise bad in law and the Commissioner of Income-tax (Appeals) ought to have held as such, 2:3 The Appellant submits that the proceedings u/s. 148 of the Income-tax Act, 1961 were not in accordance with law and consequently ought to be struck down. Without prejudice to the following: 3:0 Re: Disallowance of depreciation claimed @ 10% on buildings used as staff quarters: 3:1 The Assessing Officer has erred in disallowing a sum of Rs. 3,19,30,349/- from the depreciation claimed by the Appellant @ 10% on the buildings owned and used by it as staff quarters. 3:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject the stand taken by the Assessing Officer in this regard is incorrect, erroneous, illegal and misconceived and the Commissioner of Income-tax (Appeals) ought to have held as such. 3:3 The Appellant submits that the Assessing Officer be directed to allow the depreciation @10% on the buildings used as staff quarters in computing its total income and to re-compute its total income and tax thereon accordingly. 4:0 Re: Not considering the 'total income' as assessed in terms of Order dated 20 September 2011 giving effect to the Order dated 06 June 2011 passed by the Commissioner of Income-tax(Appeals): 4:1 The Assessing Officer has erred in not considering the total income as assessed in terms of Order dated 20 September 2011 giving effect of the Order dated 06 June 2011 passed by the Commissioner of Income-tax(Appeals) being the finalized total income for the year. 4 ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., 4:2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject the total income considered by the Assessing Officer is erroneous and hence ought to be rectified as such and the stand taken by the Assessing Officer in this regard is incorrect, erroneous and misconceived and the Commissioner of Income-tax (Appeals) ought to have held as such. 4:3 The Appellant submits that the Assessing Officer be directed to consider the total income in accordance with the law and to re- compute its total income and tax thereon accordingly. 5:0 Re.: General 5:1 The Appellant craves leave to add, alter, amend, substitute and/or modify in any manner whatsoever all or any of the foregoing grounds of appeal at or before the hearing of the appeal.” 3. At the time of hearing, Ld. AR of the assessee submitted that Ld.CIT(A) completed the proceedings exparte by recording in his order at Para No. 5 that he has issued several notices to the assessee and these notices were issued through ITBA system via e-mail ID and assessee failed to file any submissions in support of the grounds raised by them. However, he prayed that the order is passed exparte without giving opportunity to the assessee and he prayed that this appeal may be remitted back to the file of the Ld.CIT(A) for adjudicating afresh. 4. On the other hand, Ld. DR objected to the above proposal and submitted that Ld.CIT(A) has given several opportunities of which assessee has not utilized the opportunity. However, she agreed that the appeal is not adjudicated on merits. 5 ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., 5. Considered the rival submissions and material placed on record, we observe that even though Ld.CIT(A) issued several notices through ITBA system, however, assessee failed to respond to these notices and it is pertinent to note that these notices were issue during pandemic period. However, final notice was issued on 11.04.2020 after the limitation period for the COVID-19 Pandemic. We also notice that Ld.CIT(A) has not adjudicated the issue on merits. Therefore, we are inclined to remit this issue back to the file of the Ld.CIT(A) for the sake of overall justice to adjudicate on the merits after giving proper opportunity of being heard to the assessee. Accordingly, grounds raised by the assessee are allowed for statistical purpose. 6. In the result, appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 23 rd August, 2022. Sd/- Sd/ (VIKAS AWASTHY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 23/08/2022 Giridhar, Sr.PS 6 ITA NO.1753/MUM/2022 (A.Y: 2008-09) Maharashtra State Power Generation Co. Ltd., Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum