PRATIK BHUPATRAI MEHTA, MUMBAI V. DCIT 42(1)(1), MUMBAI

ITA 2338/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5634 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 01-11-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 29-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 147; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) ITA No. 2338/MUM/2023 Assessment Year: 2009-10 Pratik Bhupatrai Mehta, 702, Mahavir Darshan, Mahavir Nagar, Kandivali West-400067. Vs. DCIT-42(1)(1), Kautilya Bhavan, Bandra Kurla Complex, Bandra East, Mumbai-400051. PAN No. AGAPM 9299 B Appellant Respondent Assessee by : Mr. Rohit Golecha Revenue by : Mr. H M Bhatt, DR Date of Hearing : 02/11/2023 Date of pronouncement : 03/11/2023 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 15.03.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following grounds: 1) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the Learned A.O. of passing re-assessment order U/s. 147 of the I T Act. Reasons assigned by him for doing the same are wrong and insufficient. Appellant contends that the issuance of notice U/s.148 of the I T Act for reopening of the assessment was itself illegal and unjustified and consequently the reassessment order so passed liable to be quashed. 2) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the Learned A.O. has erred in making addition of Rs. 33,26,070 being profit shifted out and being loss shifted in by modifying client codes, treating the same as bogus and non genuine. doing the same are wrong and insufficient. 3. On the facts and circumstances of the case the Ld CIT(A erred in passing the order under section 250 of the Act without giving cognizance to the submissions made by the appellant in physical mode to the erstwhile CIT(A). 4. The order passed by the Learned A.O. is devoid of any merit, arbitrary, uncalled for a given such relief or relief's as prayed for. 2. At the outset, the Ld. Counsel there is a delay of one day in filing this appeal for reason that Chartered Accountant of the assessee was busy in regulatory compliance. Accordingly, he submitted that delay being only day that too due to bona representative by the assessee, so s 3. The Ld. Departmental Representative (DR) also did not object seriously to the request of th reason and sufficient reason day, delay is condoned and appeal is admitted for adjudication. 4. The Ld. Counsel notices issued by the Ld. CIT(A) could not be complied due to non service at the address of the as has passed the order ex itself illegal and unjustified and consequently the ssessment order so passed liable to be quashed. 2) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the Learned A.O. has erred in making addition of Rs. 33,26,070 being profit shifted out and disallowing loss Rs. 1,07,66,363 being loss shifted in by modifying client codes, treating the same as bogus and non genuine. Reasons assigned by him for doing the same are wrong and insufficient. On the facts and circumstances of the case the Ld CIT(A erred in passing the order under section 250 of the Act without giving cognizance to the submissions made by the appellant in physical mode to the erstwhile CIT(A). The order passed by the Learned A.O. is devoid of any merit, arbitrary, uncalled for and bad in law, the appellant be given such relief or relief's as prayed for. At the outset, the Ld. Counsel for the assessee submitted that there is a delay of one day in filing this appeal for reason that Chartered Accountant of the assessee was busy in regulatory compliance. Accordingly, he submitted that delay being only too due to bonafide error on the part of the authorized representative by the assessee, so same might be condoned. The Ld. Departmental Representative (DR) also did not object to the request of the assessee. In view of the bona and sufficient reason for delay in filing the appeal by one condoned and appeal is admitted for adjudication. The Ld. Counsel for the assessee further submitted that notices issued by the Ld. CIT(A) could not be complied due to non service at the address of the assessee and therefore, the Ld. CIT(A) has passed the order ex-parte without adjudicating the issue in Pratik Bhupatrai Mehta. 2 ITA No. 2338/Mum/2023 itself illegal and unjustified and consequently the 2) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the Learned A.O. has erred in making addition of Rs. 33,26,070 disallowing loss Rs. 1,07,66,363 being loss shifted in by modifying client codes, treating the Reasons assigned by him for On the facts and circumstances of the case the Ld CIT(A) erred in passing the order under section 250 of the Act without giving cognizance to the submissions made by the appellant in The order passed by the Learned A.O. is devoid of any nd bad in law, the appellant be the assessee submitted that there is a delay of one day in filing this appeal for reason that Chartered Accountant of the assessee was busy in regulatory compliance. Accordingly, he submitted that delay being only for one r on the part of the authorized ame might be condoned. The Ld. Departmental Representative (DR) also did not object e assessee. In view of the bonafide delay in filing the appeal by one condoned and appeal is admitted for adjudication. the assessee further submitted that notices issued by the Ld. CIT(A) could not be complied due to non- sessee and therefore, the Ld. CIT(A) parte without adjudicating the issue in dispute on merit. The Ld. Counsel further submitted that in the immediately preceding assessment year, the Tribunal has set aside the order of the Ld. CIT( deciding both the issue of validity of the reassessment as well as merit of the addition made for modification of the client code. Accordingly, he submitted that the appeal might be deciding afresh after considering submission of the assessee. 5. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. It is undisputed that asse and therefore the Ld. CIT(A) has decided the order ex given any finding on the merit of the addition. In our opinion, terms of section 250(6) of the Act, a reasoned order even in absence of the submission of the assessee on merit. Therefore, we feel it appropriate to set aside the orde the Ld. CIT(A) and restore for deciding afresh after considering submission of t Before us, the Ld. Counsel of the assessee has given that assessee shall co issued shall be complied. Accordingly, the ground No. 3 of the appeal of the assessee is allowed. The other accordingly rendered academic and ther adjudicated upon at this stage. dispute on merit. The Ld. Counsel further submitted that in the immediately preceding assessment year, the Tribunal has set aside the order of the Ld. CIT(A) and matter has been restored back for deciding both the issue of validity of the reassessment as well as merit of the addition made for modification of the client code. he submitted that in year under consideration restored back to the file of the Ld. CIT(A) for deciding afresh after considering submission of the assessee. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. It is undisputed that assessee has not complied before the Ld. CIT(A) and therefore the Ld. CIT(A) has decided the order ex given any finding on the merit of the addition. In our opinion, terms of section 250(6) of the Act, the Ld. CIT(A) is required to pass oned order even in absence of the submission of the assessee Therefore, we feel it appropriate to set aside the orde the Ld. CIT(A) and restore the issue back to the file of the Ld. CIT(A) for deciding afresh after considering submission of t Before us, the Ld. Counsel of the assessee has given that assessee shall co-operate in appellate proceedings issued shall be complied. Accordingly, the ground No. 3 of the appeal of the assessee is allowed. The other grounds accordingly rendered academic and therefore, same are not upon at this stage. Pratik Bhupatrai Mehta. 3 ITA No. 2338/Mum/2023 dispute on merit. The Ld. Counsel further submitted that in the immediately preceding assessment year, the Tribunal has set aside A) and matter has been restored back for deciding both the issue of validity of the reassessment as well as merit of the addition made for modification of the client code. year under consideration, also restored back to the file of the Ld. CIT(A) for deciding afresh after considering submission of the assessee. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. It is ssee has not complied before the Ld. CIT(A) and therefore the Ld. CIT(A) has decided the order ex-parte but not given any finding on the merit of the addition. In our opinion, in the Ld. CIT(A) is required to pass oned order even in absence of the submission of the assessee Therefore, we feel it appropriate to set aside the order of the issue back to the file of the Ld. CIT(A) for deciding afresh after considering submission of the assessee. Before us, the Ld. Counsel of the assessee has given an undertaking proceedings and notices issued shall be complied. Accordingly, the ground No. 3 of the grounds on merit are efore, same are not 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced Sd/ (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 03/11/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// In the result, the appeal filed by the assessee is allowed for Order pronounced in the open Court on 03/11 Sd/- Sd/ RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Pratik Bhupatrai Mehta. 4 ITA No. 2338/Mum/2023 In the result, the appeal filed by the assessee is allowed for /11/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai