CIRCUMFERENCE DESIGN PVT. LTD., MUMBAI V. ITO 12 (1)(4), MUMBAI

ITA 2289/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1808 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIDD HA RAM A PPA
• Keywords: Opportunity of being heard; Principle of natural justice; Reason to believe; Set aside
• Section: 142(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 2289 /MUM/2019 ASSESSMENT Y EAR: 2010 - 11 M/S CIRCUMFERENCE DESIGN PVT. LTD., 402, LAKE VIEW, OPP. BANDRA LAKE, BANDRA (W), MUMBAI - 400050 PAN: AADCC6040Q VS. INCOME TAX OFFICER 12 (1)(4), AAYAKAR BHAWAN, M.K. ROAD, CHURCHGATE, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SHIDD HA RAM A PPA (D R ) DATE OF HEARI NG : 27 /05 /202 1 DATE OF PRONOUNCEMENT: 25 / 0 6 /202 1 O R D E R THIS IS AN AP PEAL BY THE ASSESSEE AGAINST ORDER DATED 15.03.2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 20, MUMBAI FOR THE ASSESSMENT YEAR 2010 - 11. 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, CONSIDERING THE NATURE OF DISPUTE, I PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASS ESSEE WITH THE ASSISTANCE OF LEARNED DEPARTM ENTAL REPRESENTATIVE AND BASED ON MATERIAL ON RECORD. 3. THE GROUNDS RAISED BY ASSESSEE READ AS UNDER : 1. CIT (A) HAS ERRED IN DISMISSING THE APPEAL ON TECHNICAL GROUND OF NON - VERIFICATION OF FORM - 35 BY THE DIGITAL SIGNATURE OF THE DIRECTOR OF THE COMPANY. 2 ITA NO. 2289 / MUM/2019 ASSESSMENT YEAR: 20 10 - 1 1 2. CIT (A) HAS ERRED IN NOT GIVING PROPER OPPORTUNITY OF BEING HEARD FOR RECTIFICATION THE TECHNICAL ERROR OF NON - VERIFICATION OF THE FORM - 35 OF DIGITALLY SIGNED BY THE DIRECTOR OF THE COMPANY. 3. CIT (A) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE HEARING NOTICE WAS ISSUED IN RESPONSE TO WHICH ASSESSEE HAS COMPLIED BY THE SUBMISSIONS OF DETAILS. THE APPELLANT CRAVES TO ADD, DELETE, ALTER, MODIFY AND WITHDRAW ANY OF THE GROUND DURING PENDENCY OF THE APPEAL. 4 . BRIEFLY THE FACTS ARE, THE ASSESSEE IS A RESI DENT COMPANY. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 26.09.2010 DECLARING TOTAL INCOME OF RS. 13,85,570/ - . SUBSEQUENTLY, THE ASSESSING OFFI CER (AO) HAVING REASON TO BELIEVE THAT INCOME ASSESSABLE TO TAX FOR TH E YEAR UNDER CONSIDERATION HAS ESCAPED ASSESSMENT , REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. AS OBSERVED BY THE AO , IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT RESPOND TO NOTICE ISSUED UNDER SECTIONS 142(1) AND 143 (2) OF THE ACT. ACCORDINGLY, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 R.W.S. 147 OF THE ACT TO THE BEST OF HIS JUDGMENT. WHILE DOING SO, HE MADE VARIOUS ADDITIONS/DISALLOWANCE S RESULTING IN DETERMINATION OF TOTAL INCOME AT RS. 63,34,000/ - . AGAINST THE ASSESSMENT ORDER SO PASSED , THE ASSESSEE PREF ERRED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). LEARNED COMMISSIONER (APPEALS) HAVING FOUND THAT THE MEMORANDUM OF APPEAL IN FORM NO. 35 WAS NOT SIGNED AND VERIFIED BY A PERSON AUTHORISED TO VERIFY THE R ETURN OF INCOME AS PER RULE 45 OF THE INCOME TAX RULES, 1962 R.W.S. 140 OF THE ACT , TREATED THE APPEAL IS INVALID AND DISMISSED IT. 5 . I HAVE CONSI DERED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE M ATERIAL ON RECORD. A PERUSA L OF IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) REVEALS THAT THE APPEAL WAS DECIDED EX - PARTE , THAT TO O, IN LIMINE BY DISMISSING THE APPEAL O N PURELY TECHNICAL GROUND OF MEMORANDUM OF APPEAL HAVING NOT BEEN SIGNED AND VERIFIED BY ANY 3 ITA NO. 2289 / MUM/2019 ASSESSMENT YEAR: 20 10 - 1 1 AUTHORIZED PE RSON . THE AFORESAID ORDER OF LEARNED COMMISSIONER (APPEALS) DOES NOT REVEAL WHETHER ANY NOTICE WAS ISSUED BY HIM REQUIRING THE ASSESSEE TO EITHER REMOVE THE DEFECT IN THE M EMORANDUM OF APPEAL OR TO ATTEND THE HEARING. PRIMA FACIE , IT APPEARS FROM THE FACTS ON RECORD , BEFORE DECIDING THE APPEAL EX - PARTE , THAT TO O, IN LIMINE , LEARNED COMMISSIONER (APPEALS) HAS NOT PROVIDED A REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THEREFORE, THERE IS CLEAR VIOLATION OF RULES OF NATURAL JUSTICE. 6 . IN VIEW OF THE A FORESAID, I AM INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE MATTER BACK TO HIM FOR FRESH ADJUDICATION. IN CASE , THE APPEAL IS DEFECTIVE, THE ASSESSEE SHOULD BE GIVEN REASONABLE OPPORTUNITY TO REMOVE SUCH DEFECT . IT IS FURTHER DIRECTED , LEARNED COMMISSIONER (APPEALS) MUST DECIDE THE APPEAL ON MERITS AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED. 7 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE , 2021 . SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 25 / 06 /2021 ALINDRA, PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 4 ITA NO. 2289 / MUM/2019 ASSESSMENT YEAR: 20 10 - 1 1