PUSHPANJALI REALTORS PVT. LTD., MUMBAI V. ACIT - 15 (2)(2), MUMBAI

ITA 199/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0312 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 15-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHREEKALA PARDESHAI
• Keywords: Set aside
• Section: 143(3); 22

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , . . , BEFORE S H RI VIKAS AWASTHY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ./ ITA NO. 199 / MUM/ 2019 ( / ASSESSMENT YEAR 2015 - 16 ) M/S PUSHPANJALI REALTORS P. LTD. 199, V.N. SPHERE, 3 RD FLOOR, ANJALI APARTME NTS, PLOT NO.1, SECTOR - 2, SANPADA (W), NAVI MUMBAI - 400 705 / VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 15(2)(2), MUMBAI ( / APPELLANT) ( / RESPONDENT) . / PAN NO. AAECP 6138 R / APPELLANT BY : NONE / RESPONDENT BY : MS. SHREEKALA PARDESHAI, DR / DATE OF HEARING: 22 .1 2 . 2020 / DATE OF PRONOUNCEMENT: 29 .12 .2020 / O R D E R , PER VIKAS AWASTHY , JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN EX - PARTE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 24 , MUMBAI (IN SHORT THE CIT(A)) DATED 26.10.2018 FOR THE ASSESSMENT YEAR 2015 - 16. 2. THE ASSESSEE IN APPEAL HAS ASSAILED THE ORDER OF CIT(A) INT ER ALIA ON THE GROUND THAT THE ORDER HAS BEEN PASSED IN EX - PARTE PROCEEDINGS. PAGE | 2 ITA NO. 199 /MUM/ 2019 M/S PUSHPANJALI REALTORS P. LTD , AY: 15 - 16 3. A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE IN EX - PARTE PROCEEDINGS BY FOLLOWING THE DECISION OF DELHI TRIBUNAL IN THE CASE OF CIT VS. MULTIPLAN INDIA (P.) LTD. REPORTED AS (1991) 38 ITD 320. THEREAFTER, CIT(A) PROCEEDED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AS WELL. HOWEVER , WHILE DECIDING THE APPEAL ON MERITS, THE CIT(A) HAS MERELY REPRODUCED THE FINDINGS OF HIS PREDECESSOR , GIVEN IN ASSESSMENT YEAR 2011 - 12 AND FOLLOWED THE SAME STATING IT TO BE IDENTICAL ISSUE . 4. MS. SHREEKALA PARDESHAI APPEARING ON BEHALF OF THE REVENUE SUBMITTED THAT NOTICE OF HEARING OF THE APPEAL WAS SENT TO THE ASSESSEE ON TWO OCCASIONS I .E. 12.07.2018 AND AGAIN ON 24.09.2018 BY THE CIT(A). THE NOTICES WERE DULY SERVED ON LINE, HOWEVER, THE ASSESSEE F AILED TO RESPOND TO THE NOTICES. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AND HAVE EXAMINED THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IS A REAL ESTATE DEVELOPER AND TRADER IN IMMOVABLE PROPERTIES. IN SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE ADDITION/ DISALLOWANCE OF EXPENSES IN RESPECT OF SEVANAGAR PROJECTS AGGREGATING TO 9,78,80,047/ - . AGGRIEVED, BY THE ASSESSMENT ORDER DATED 27.12.2017 PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) , THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) IN AN EX - PARTE PROCEEDINGS PRIMARILY DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION. IT IS A WELL SETTLED LEGAL PROPOSITION THAT THE CIT(A) CANNOT PAGE | 3 ITA NO. 199 /MUM/ 2019 M/S PUSHPANJALI REALTORS P. LTD , AY: 15 - 16 DISMISS THE APPEAL IN LIMINE FOR NON - PROSECUTION [RE CIT (CENTRAL), NAGPUR VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) 240 TAXMAN 133 ] . 6. THOUGH THE CIT(A) HAS ALSO PASSED THE ORDER DISMISSING THE GROUNDS RAISED IN THE APPEAL ASSAILING ADDITION , F ROM PERUSAL OF THE IMPUGNED ORDER, IT IS APPARENT THAT FINDINGS ON THE GROUND S RAISED BY THE ASSESSEE IS MERELY A FORMALITY TO CIRCUMVENT THE PROCESS OF L AW LAID DOWN FOR HEARING OF THE APPEAL AND ADJUDICATION OF GROUNDS ON MERIT. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, WE ARE OF CONSIDERED VIEW THAT THE IMPUGNED ORDER DESERVES TO BE SET ASIDE . WE HOLD AND DIRECT ACCORDINGLY. THE APPEAL IS RESTORED TO CIT(A) FOR DECIDING THE GROUNDS RAISED IN THE APPEAL ON MERITS AFTER AFFORDING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 7. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CIT(A) ON RECEIPT OF VALID NOTICE AND CO - OPERATE IN THE APPE LLATE PROCEEDINGS. 8. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY THE 29 TH DAY OF DECEMBER , 2020. SD/ - SD/ - ( . . / N.K. PRADHAN ) ( / VIKAS AWASTHY ) ( / ACCOUNTANT MEMBER) ( / JUDICIAL MEMBER ) , / MUMBAI, DATED: 29.12.2020 , . / SUDIP SARKAR, SR.PS PAGE | 4 ITA NO. 199 /MUM/ 2019 M/S PUSHPANJALI REALTORS P. LTD , AY: 15 - 16 / 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// / (ASST T. REGISTRAR) , / ITAT, MUMBAI