IDOL HOME MAKERS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 10(1)(2), MUMBAI

ITA 224/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7854 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus Share capital; Opportunity of being heard; Principle of natural justice; Sham transactions
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL I II I BENCH, MUMBAI BENCH, MUMBAI BENCH, MUMBAI BENCH, MUMBAI . . , , # BEFORE BEFORE BEFORE BEFORE HONBLE HONBLE HONBLE HONBLE SHRI SHRI SHRI SHRI C.N. PRASAD C.N. PRASAD C.N. PRASAD C.N. PRASAD, JM , JM , JM , JM AND AND AND AND HONBLE HONBLE HONBLE HONBLE SHRI MANO SHRI MANO SHRI MANO SHRI MANOJ JJ J KUMAR AGGARWAL, AM KUMAR AGGARWAL, AM KUMAR AGGARWAL, AM KUMAR AGGARWAL, AM ./ I.T.A. NO.224/MUM/2018 ( $ $ $ $ %$ %$ %$ %$ / / / / ASSESSMENT YEAR: 2012-13) M/S. IDOL HOME M/S. IDOL HOME M/S. IDOL HOME M/S. IDOL HOMES SS S MAKER PVT. MAKER PVT. MAKER PVT. MAKER PVT. LTD. LTD. LTD. LTD. LAXMI BUILDING, HATKESH SOCIETY, PLOT NO.70, 8 TH ROAD JVPD SCHEME, JUHU MUMBAI-400 049. / VS. INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER- -- -1 11 10(1) 0(1) 0(1) 0(1)( (( (2 22 2) )) ) ROOM NO.25, GROUND FLOOR, AAYKAR BHAVAN MUMBAI-400 020. & ./ ./PAN/GIR NO. AABCI AABCI AABCI AABCI- -- -8171 8171 8171 8171- -- -Q QQ Q ( &( / // /APPELLANT APPELLANT APPELLANT APPELLANT) : ( )&( / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ASSESSEE BY ASSESSEE BY ASSESSEE BY ASSESSEE BY : NONE REVENUE BY REVENUE BY REVENUE BY REVENUE BY : SHRI K.L. KANAK - LD.DR * +, / // / DATE DATE DATE DATE OF HEARI OF HEARI OF HEARI OF HEARING NGNG NG : 24/04/2019 % * +, / DATE OF PRONOUNCEMENT DATE OF PRONOUNCEMENT DATE OF PRONOUNCEMENT DATE OF PRONOUNCEMENT : 24/04/2019 / / / / O R D E R O R D E R O R D E R O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2008-09 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEAL S)-17, MUMBAI [CIT(A)], APPEAL NO. CIT(A)-17/IT-111/16-17 D ATED 21/11/2017 ON CERTAIN GROUNDS OF APPEAL, THE PERUSAL OF WHICH REVEAL THAT THE ASSESS EE IS AGGRIEVED BY DISMISSAL OF APPEAL ON TECHNICAL GROUNDS. 2 2. NONE HAS APPEARED FOR ASSESSEE AND NO VALID ADJO URNMENT APPLICATION IS ON RECORD. LEFT WITH NO OPTION, WE PROCEED TO DISPO SE-OFF THE SAME ON THE BASIS OF MATERIAL ON RECORD AND AFTER HEARING LD. DEPARTM ENTAL REPRESENTATIVE [DR] WHO SUBMITTED THAT THE APPEAL BEFORE LD. CIT(A) WAS NOT E-FILED AS REQUIRED BY EXTANT RULES AND THEREFORE, THE SAME HAS RIGHTLY BE EN DISMISSED. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASS ESSEE HAS BEEN ASSESSED ON 17/03/2016 U/S 143(3) R.W.S. 147 WHEREIN THE ASS ESSEE WAS SADDLED WITH ADDITION OF RS.4 CRORES ON ACCOUNT OF ALLEGED BOGUS SHARE CAPITAL & ANOTHER ADDITION OF RS.6,000/- ON ACCOUNT OF COMMISSION ON ALLEGED SHAM TRANSACTIONS. 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL AGAINS T THE SAME BEFORE LD. CIT(A) ON 21/04/2016 MANUALLY IN PAPER-FORM. HOWEVE R, THE SAID APPEAL IN TERMS OF CBDT NOTIFICATION NO. SO 637(E) [NO. 11/20 16 (F. NO. 149/150/2015- TPL)], DATED 1-3-2016 , WAS REQUIRED TO BE FILED DIGITALLY IN ELECTRONIC F ORM UP-TO EXTENDED PERIOD OF 15/06/2016. THE SAID FACT WAS BR OUGHT TO THE NOTICE OF ASSESSEE VIDE LETTER DATED 16/10/2017 WHICH WAS NOT RESPONDED TO. RESULTANTLY, THE APPEAL WAS TREATED AS NON-MAINTAINABLE AND INAD MISSIBLE. A LIBERTY WAS GIVEN TO THE ASSESSEE TO FILE THE APPEAL IN ELECTRO NIC FORM AND SEEK CONDONATION OF DELAY. AGGRIEVED, THE ASSESSEE IS IN FURTHER APP EAL BEFORE US. 5. UPON CAREFUL CONSIDERATION, WE FIND THAT THE APP EAL WAS FILED BY THE ASSESSEE, THOUGH IN PAPER FORM, WITHIN STIPULATED T IME PERIOD. KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE CO NSIDERED OPINION THAT MERE TECHNICAL LAPSES COULD NOT DEPRIVE THE ASSESSEE TO SEEK JUSTICE IN OTHERWISE VALID APPEAL. IT IS ALSO NOTED THAT THE IN THE INITIAL ST AGES OF ELECTRONIC FILING OF APPEAL, THE POSSIBILITY OF TECHNICAL GLITCHES COULD NOT BE RULED OUT. THEREFORE, WE DEEM IT FIT TO DIRECT THE ASSESSEE TO E-FILE THE APPEAL IN THE PRESCRIBED MANNER BEFORE 3 LD. FIRST APPELLATE AUTHORITY WITHIN 15 DAYS FROM T HE DATE OF RECEIPT OF THIS ORDER. THE APPEAL, SO FILED, SHALL BE TREATED TO HAVE BEEN FILED IN TIME. THE LD. CIT(A) IS DIRECTED TO ADJUDICATE THE SAME ON MERITS AFTER AFF ORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLES TO ADD THAT, F AILURE TO E-FILE THE APPEAL AS DIRECTED BY US HERE-IN-ABOVE SHALL RESULT INTO CONF IRMATION OF STAND OF LD. CIT(A). 6. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH APRIL, 2019. SD/ SD/SD/ SD/- -- - SD/ SD/SD/ SD/- -- - ( (( (C.N. PRASAD C.N. PRASAD C.N. PRASAD C.N. PRASAD) )) ) (MANOJ KUMAR AGGARWAL) (MANOJ KUMAR AGGARWAL) (MANOJ KUMAR AGGARWAL) (MANOJ KUMAR AGGARWAL) / / / / JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER / / / / ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER MUMBAI; / DATED : 24/04/2019 SR.PS, JAISY VARGHESE *+0 0%+ *+0 0%+ *+0 0%+ *+0 0%+ /COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO COPY OF THE ORDER FORWARDED TO : :: : 1. &( / THE APPELLANT 2. )&( / THE RESPONDENT 3. 1 ( ) / THE CIT(A) 4. 1 / CIT CONCERNED 5. 023+ , , / DR, ITAT, MUMBAI 6. 34$5 / GUARD FILE / // / BY ORDER, / // / (DY./ASSTT.REGISTRAR) , , , , / ITAT, MUMBAI / ITAT, MUMBAI / ITAT, MUMBAI / ITAT, MUMBAI. .. .