PERPUTO CONTENT MANAGEMENT P.LTD, MUMBAI V. ITO 9(2)(4), MUMBAI

ITA 2216/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7347 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN LD
• Keywords: Additional evidence; Condonation of delay
• Section: 143(3)

Judgement Text

ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.2215 & 2216/MUM/2015 ( ASSESSMENT YEARS: 2008-09 & 2009-10) PERPUTO CONTENT MANAGEMENT P VT. LTD. C/O V.N.DEODHAR & CO. 4/3 RADHA,1 ST FLOOR SHASTRI HALL, GRANT ROAD(W) MUMBAI-400 007 VS. INCOME TAX OFFICER 9(2)(4) MUMBAI-400 020 ! ' PAN/GIR NO.AADCP-6770-G ( !# APPELLANT ) : ( $%!# RESPONDENT ) REVENUE BY : V.JENARDHANAN,LD.DR ASSESSEE BY : MILIN THAKORE,LD.AR & DATE OF HEARING : 24/04/2018 '() / DATE OF PRONOUNCEMENT : 27 /04/2018 O R D E R PER BENCH 1. THE CAPTIONED APPEALS BY ASSESSEE FOR ASSESSMENT YE ARS [AY] 2008- 09 & 2009-10 CONTEST SEPARATE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEALS)-58, MUMBAI [CIT(A)], APPEAL NOS.CIT(A)-58/ARR-27 & 28/2014-15 2 ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 BOTH DATED 09/01/2015. SINCE COMMON ISSUE IS INVOLVED, THE APPEALS ARE BEING DISPOSED-OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. 2. FACTS IN AY 2008-09 ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE HAS BEEN ASSESSED U/S 143(3) READ WITH SECTION 144C ON 16/02/2012 AT RS.142.67 LACS AFTER CERTAIN ADJUSTME NTS / DISALLOWANCES AS AGAINST RETURNED INCOME OF RS.23.84 LACS FILED BY T HE ASSESSEE ON 30/09/2008. THE ASSESSMENT ORDER IS STATED TO BE S ERVED ON THE ASSESSEE ON 28/06/2012. M/S KULKARNI DHURI & COMPANY, CHARTERED ACCOUNTANTS [AR] REPRESENTED THE ASSESSEE DURING ASSESSMENT PROCEED INGS AND VIDE LETTER DATED 06/04/2011, THEY HAD REQUESTED LD. AO TO SEND ALL NOTICES / LETTERS AT THE ADDRESS OF THE AR. 3. AGGRIEVED BY THE ADDITIONS / DISALLOWANCES, THE ASSESSEE PREFERRED AN APPEAL AGAINST THE SAME THROUGH HIS AR BEFORE LD. CIT(A) WITHOUT ANY SUCCESS VIDE IMPUGNED ORDER DATED 09/01/2015. THE A PPEAL BEFORE LD. CIT(A) WAS FILED ON 21/03/2014 I.E. AFTER DELAY OF 602 DAYS, THE CONDONATION OF WHICH WAS SOUGHT VIDE LETTER DATED 16/04/2014. HOWEVER, LD. CIT(A) NOTED THAT THE ASSESSEE WAS, ALL THROUGHOUT, SUPPO RTED BY QUALIFIED CHARTERED ACCOUNTANTS AND FURTHER IT WAS THE OFFICIAL LIQUIDATOR , BEING COMPANY SECRETARY, WHO WAS TO SIGN THE APPEAL PAPER S AND DECIDE THE MATTER OF FILING OF APPEAL AND THEREFORE, AR OF THE ASSESSEE HAD NO ROLE IN FILING THE APPEAL. FINALLY NOT CONVINCED WITH ASSES SEES EXPLANATION AND PLACING RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS , THE DELAY WAS NOT 3 ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 CONDONED BY LD. FIRST APPELLATE AUTHORITY AND THE A PPEAL WAS DISMISSED ON THE GROUND OF DELAY, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. AUTHORIZED REPRESENTATIVE, SIMILARLY PLE ADING FOR CONDONATION OF DELAY, TOOK US THROUGH CHRONOLOGY OF THE EVENTS TO SUPPORT HIS STAND IN THE FOLLOWING MANNER:- SR. NO. EVENT DATE /REFERENCE PA RTICULARS PAGE NO. OF PAPER BOOK AFFIDAVIT PARA NO. 1 APRIL / MAY 2010 TERMINATION OF ALL EMPLOYED STAF F AND SHUT DOWN OF OPERATIONS, SINCE PERPUTO INC. (THE SOLE CUSTOMER OF PERPUTO CONTENT MANAGEMENT PRIVATE LIMITED (PCMPL)) TERMINATED ITS CONTRACT WITH PCMPL . 1-2 5C 2 13.12.2010 SPECIAL RESOLUTION PASSED AT EXTRAORDI NARY GENERAL BODY MEETING TO WIND UP THE COMPANY THROUGH THE METHOD OF VOLUNTARY LIQU IDATION. 5D 3 06.04.2011 LETTER FILED WITH THE OFFICE OF THE AS SESSING OFFICER TO SEND ALL LETTERS/NOTICES TO AUTHORIZED REPRESENTATIVES (AR) OF THE PCMP.L 5E 4 16.02.2012 DATE OF FINAL ASSESSMENT ORDER UNDER S ECTION 143(3) R.W.S. 144C(3) SERVED ON 28.06.2012. 5F 5 E-MAIL DATED 12.03.2012 MAIL SENT FROM PCMPL TO T HE AR ASKING IF ANY SCRUTINY NOTICE WAS RECEIVED FOR AY 2008-09 SO THAT WAY FORWARD CAN BE DISCUSSED WITH THE LIQUIDATOR. 3 6 E-MAIL DATED 30.05.2012 MAIL SENT FROM PCMPL TO T HE ARS REQUESTING TO FORWARD THE ASSESSMENT ORDER FOR AY 2008-09 AS SOON AS IT IS RECEIVED. 4 7 28.06.2012 ASSESSMENT ORDER WAS SERVED ON THE ARS . 5F 8 E-MAIL DATED 24.07.2012 REMINDER MAIL SENT TO THE ARS POST THE MAIL DATED 30.05.2012 REQUESTING FOR THE FINAL ASSESSMENT ORDER FOR AY 2008-09. 4 9 E-MAIL DATED 05.08.2012 ASSESSMENT ORDER FOR AY 2 008-09 DATED 16.02.2012 FORWARDED TO PCMPL BY THE ARS INFORMING THAT APPEAL TO THE CIT(A) CAN BE FILED ONLY UNTIL NEXT WEEK. 5 5G 10 E-MAIL DATED 06.08.2012 MAIL CORRESPONDENCE FROM PCMPL TO DELOITTE REQUESTING TO REVIEW THE ORDER RECEIVED FROM THE TP PERSPECTIVE SO AS TO FIL E APPEAL WITH THE CIT(A). 6 5H 11 E-MAIL DATED 09.08.2012 MAIL FROM PCMPL TO THE A RS INFORMING THEM OF THE TP GROUNDS SUGGESTED BY DELOITTE AND REQUESTING THEM TO FILE THE APPEAL TO THE CIT(A) WITHIN THE AVAILABLE TIME. 5 5I 12 E-MAIL DATED 16.11.2012 MAIL FROM PCMPL TO THE A RS DOCUMENTING THE ARS CONFIRMATION THAT THE APPEAL HAS BEEN SUCCESSFULLY FILED SUGGESTING THAT THE ADDITIONAL DEMAND RAISED FOR THE YEAR BE PAID OFF SO THAT ADDITIONAL INTEREST IS NOT ACCUMULATED AND REQUESTING THE OPINION OF THE ARS O N THE SAME. 8 5K 13 E-MAIL DATED 24.07.2013 MAIL FROM PCMPL TO THE A RS ASKING FOR A STATUS UPDATE ON THE APPEAL FILED FOR AY 2008-09 AND REQUESTING A COPY OF THE APPEAL PAPERS FILED BY THE ARS. 9 5L 14 E-MAIL DATED 18.09.2013 MAIL FROM PCMPL TO THE A RS FOLLOWING UP ON THE NON-RECEIPT OF APPEAL PAPERS FOR AY 2008-09 AND REQUESTING FOR THE SAME. 10 5M 15 E-MAIL DATED 20.09.2013 MAIL CORRESPONDENCE FROM PCMPL TO DHS LLP FORWARDING THE FINAL ASSESSMENT ORDERS AND TP ORDERS FOR AY 2008-09 AND 2009-10. FURTHER INFORMING DHS LLP THAT THE ARS CLAIM THAT THEY HAVE FILED AN APPEAL WITH THE CIT(A) FOR AY 2008-09 IN AUG 2012 BUT THE APPEA L FILED HAS NOT BEEN 11 5N 4 ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 FORWARDED TO PCMPL. 16 E-MAIL DATED 15.10.2013 MAIL CORRESPONDENCE FROM DHS LLP TO PCMPL INFORMING THAT THEY HAVE BEEN IN CONSTANT CONTACT WITH THE ARS AND HAVE BEEN REASSURED BY THE ARS THAT THEY WILL SHARE ALL THE DETAILS BY 16.10.2013. 12 5O 17 E-MAIL DATED 20.10.2013 MAIL CORRESPONDENCE FOR PCMPL TO DHS LLP REQUESTING AN UPDATE ON THE STATUS OF APPEAL DOCUMENTS WHICH WERE TO BE RECEIVE D FROM THE ARS. 12 5P 18 E-MAIL DATED 21.10.2013 MAIL CORRESPONDENCE FROM DHS LLP TO THE AR REFERRING TO THE DISCUSSION HAD ON 09.10.2013 AND 15.10.2013. THE MAIL IS SENT REQUESTING THE ARS TO SHARE THE DETAILS THAT WERE ASSURED TO BE SENT BY 1 6.10.2013, ALSO MENTIONING THE FACT THAT THE ARS COULD NOT BE CONNE CTED TO DESPITE SEVERAL ATTEMPTS. 13 5Q 19 E-MAIL DATED 05.11.2013 MAIL CORRESPONDENCE FROM PCMPL TO DHS LLP WHEREIN IT IS MENTIONED THAT THE COMPANY IS STILL UNDER THE BELIEF THAT THE ARS HAVE FILED AN APPEAL FOR AY 2008-09 IN JULY/AUG 2012. HOWEVER, IT IS STA TED THAT PCMPL HAS STILL NOT RECEIVED A COPY OF THE APPEAL FILED DESPI TE MULTIPLE FOLLOW UPS WITH THE AR. PCMPL FURTHER REQUESTED DHS LLP TO HELD GET A COPY OF THE APPEAL FILED FOR AY 2008-09 FROM THE ARS. 14-15 5R 20 12.11.2013 MR. GOPALAN FROM PCMPL MET THE ARS. 1 4 5S 21 THE DEPARTMENT /STAFF IN THE OFFICE OF THE CIT( A) WAS NOT ACCEPTING THE APPEAL (SIGNED BY LIQUIDATOR) WITHOUT FURTHER BACKG ROUND AND FACTS IN RELATION TO LIQUIDATION OF THE COMPANY. 5T 22 E-MAIL DATED 14.01.2014 MAIL CORRESPONDENCE FROM PCMPL TO THE LIQUIDATOR REQUESTING HIM TO SIGN ANY DOCUMENTS THAT MAY BE REQUIRED BY THE ARS FOR I NCOME-TAX PURPOSES. 16 5U 23 E-MAIL DATED 14.01.2014 MAIL CORRESPONDENCE FROM PCMPL TO THE ARS PROVIDING A DETAILED WRITE UP ABOUT THE BACKGROUND FACTS REQUIRED FOR THE APPE AL TO BE ACCEPTED BY THE STAFF OF CIT(A). 17-18 5U 24 21.03.2014 LETTER FOR CONDONATION OF DELAY FILED . 1-2 5V 25 21.03.2014 DATE OF FILING THE APPEAL TO COMMISSI ONER OF INCOME-TAX (APPEALS) (DELAY OF 602 DAYS). 1-2 5 26 16.04.2014 LETTER EXPLAINING CAUSE FOR DELAY IN FILING OF APPEAL AND REQUEST FOR CONDONATION OF DELAY. 6 THE SUPPORTING DOCUMENTS AS REFERRED TO IN THE ABOV E TABLE HAVE BEEN PLACED IN THE PAPER-BOOK FILED BEFORE US. THE PETITION IS ALSO SUPPORTED BY AN AFFIDAVIT DATED 12/04/2016 EXECUTED BY RAMESH GOPALAN, COUNTRY HEAD-INDIA. THE LD. COUNSEL PLEADED FOR CONDONATION ON THE GRO UND THAT THE ASSESSEE ACTED IN GOOD FAITH AND STOOD TO GAIN NOTHING BY FILING THE APPEAL WITH A DELAY. RELIANCE HAS BEEN PLACED ON VA RIOUS JUDICIAL PRONOUNCEMENTS TO SUPPORT THE VARIOUS SUBMISSIONS. 5. PER CONTRA , LD. DEPARTMENTAL REPRESENTATIVE [DR] POINTED OUT THAT COMPANY WAS UNDER LIQUIDATION AND IT WAS THE LIQUID ATOR ONLY WHO WAS 5 ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 RESPONSIBLE FOR FILING THE APPEAL AND THEREFORE, TH E CONDONATION PETITION NEED TO BE FILED BY HIM AND NOT BY THE ASSESSEES R EPRESENTATIVE AS RIGHTLY POINTED OUT BY LD. CIT(A). THE LD. DR ALSO CONTENDE D THAT ALL THESE SUBMISSIONS / DOCUMENTARY EVIDENCES WERE NOT AVAILA BLE BEFORE LD. CIT(A) AND THEREFORE, THE SAME BEING ADDITIONAL EVIDENCES, NEED TO BE CONFRONTED TO FIRST APPELLATE AUTHORITY. 6. UPON CAREFUL CONSIDERATION, WE FIND THAT ASSESSE E HAD SOUGHT CONDONATION OF DELAY BEFORE LD. CIT(A) VIDE LETTER DATED 16/04/2014, WHICH IS NOT BEFORE US AND THEREFORE, IT IS NOT CLEAR AS TO THE STAND TAKEN BY THE ASSESSEE THEREIN. SECONDLY, IT IS UNDISPUTED FACT T HAT THE COMPANY WAS UNDER LIQUIDATION AND IT WAS THE LIQUIDATOR ONLY WH O ALONE WAS COMPETENT TO CARRY OUT PROCEEDINGS ON BEHALF OF THE COMPANY. THE REFORE, ON TOTALITY OF FACTS AND CIRCUMSTANCES, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR RECONSIDERATION OF ADDITIONAL EVI DENCES SUBMITTED BY THE ASSESSEE BEFORE US AND DECIDE THE SAME IN THE LIGHT OF SUBMISSIONS MADE BY THE ASSESSEE. NEEDLESS TO ADD THAT IF THE DELAY IS CONDONED, THE APPEAL SHALL BE DISPOSED-OFF ON MERITS. RESULTANTLY THE AS SESSEES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. THE ASSESSEES APPEAL FOR AY 2009-10 HAS SIMILAR LY BEEN DISMISSED BY LD. CIT(A) SINCE THE APPEAL WAS FILED WITH A DEL AY 323 DAYS AND THE DELAY WAS NOT CONDONED BY FIRST APPELLATE AUTHORITY . FACTS BEING THE SAME, THE MATTER STAND REMITTED BACK TO THE FILE OF LD. C IT(A) ON SIMILAR LINES. RESULTANTLY, THIS APPEAL ALSO STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6 ITA NOS.2215 & 2216/MUM/2015 PERPUTO CONTENT MANAGEMENT PVT.LTD ASSESSMENT YEARS: 2008-09 & 2009-10 8. FINALLY, BOTH THE APPEALS STAND PARTLY ALLOWED I N TERMS OF OUR ABOVE ORDER FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH APRIL, 2018. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR A GGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER *& MUMBAI; DATED : 27. 04.2018 SR.PS:- THIRUMALESH ! COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - -) *& / DR, ITAT, MUMBAI 6. , ./0 & GUARD FILE ' / BY ORDER, # '$% (DY./ASSTT.REGISTRAR) *& / ITAT, MUMBAI