DCIT CC 5(3), MUMBAI V. ESKAY KNIT (INDIA), MUMBAI

ITA 2392/MUM/2017

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0100 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 04-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H” MUMBAI BEFORE SHRI ABY T. VARKEY (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) ITA No. 1268/MUM/2018 Assessment Year: 2008-09 & ITA No. 1267/MUM/2018 Assessment Year: 2009-10 DCIT, CC-5(3) (Erstwhile DCIT CC-36), R. No. 1906, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. Vs. M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), Mumbai-400013. PAN No. AABCS 1363 G Appellant Respondent ITA No. 1345/MUM/2018 Assessment Year: 2008-09 & ITA No. 1346/MUM/2018 Assessment Year: 2009-10 M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), Mumbai-400013. Vs. DCIT, CC-5(3), R. No. 1906, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. PAN No. AABCS 1363 G Appellant Respondent M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), Mumbai-400013. PAN No. AABCS 1363 G Appellant DCIT, CC-5(3), R. No. 1906, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. Appellant M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), Mumbai-400013. PAN No. AABCS 1363 G Appellant ITA No. 1268/Mum/2018 &7 Ors. ITA No. 1517/MUM/2018 Assessment Year: 2009-10 & ITA No. 1025/MUM/2020 Assessment Year: 2011-12 Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Vs. DCIT, CC-5(3), R. No. 1906, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. PAN No. AABCS 1363 G Respondent ITA No. 2392/MUM/2017 Assessment Year: 2012-13 Vs. M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), Mumbai-400013. PAN No. AABCS 1363 G Respondent ITA No. 2462/MUM/2017 Assessment Year: 2012-13 Raghuvanshi Mill Compound, Marg, Lower Vs. DCIT, CC-5(2), Mumbai. PAN No. AABCS 1363 G Respondent M/s Eskay Knit (India) ITA No. 1268/Mum/2018 &7 Ors. 2 floor, M/s Eskay Knit (India) 11/12, Krishna House, Raghuvanshi Mill Compound, Senapati Bapat Marg, Lower Parel (W), PAN No. AABCS 1363 G Revenue by Assessee by Date of Hearing Date of pronouncement PER OM PRAKASH KANT The Captioned appeals by the assessee as well as by the Revenue have been preferred against separate orders passed by the Ld. First Appellate Authority years. 2. Despite notifying none any adjournment was sought. Therefo ex-parte qua the assessee and disposed of of the Ld. Departmental Representative 3. Before us the Ld. against the company insolvency and bankruptcy proceedings under the Insolvency and ITA No. 1268/Mum/2018 &7 Ors. : Mr. Ashish Deharia, DR Assessee by : None Date of Hearing : 06/06/2022 Date of pronouncement : 06/06/2022 ORDER PER OM PRAKASH KANT, AM The Captioned appeals by the assessee as well as by the have been preferred against separate orders passed by the First Appellate Authority in respect of different assessment Despite notifying none appeared on behalf of the assessee nor any adjournment was sought. Therefore, these appeals were heard qua the assessee and disposed off after hearing submission Departmental Representative. Ld. Departmental Representative against the company insolvency and bankruptcy proceedings under and Bankruptcy Code have been initiated and M/s Eskay Knit (India) ITA No. 1268/Mum/2018 &7 Ors. 3 The Captioned appeals by the assessee as well as by the have been preferred against separate orders passed by the different assessment appeared on behalf of the assessee nor re, these appeals were heard after hearing submission ive submitted that against the company insolvency and bankruptcy proceedings under have been initiated and resolution professional has been appointed by the National Company Law Tribunal India as financial creditor. 4. On perusal of the record one authorised signatory has requested for adjournment in view of the pendency of resolution process before the NCLT that in said adjournment who signed the adjournment request, nor any authority issued by the resolution professionals held by the coordinate bench in the case of Ltd. in ITA No. 2979 to 2981 professional was required to amend prosecuting the appeal and in absence of which appeals be non-maintainable. We find that in the instant ca process has been initiated against the assessee professional has taken over ITA No. 1268/Mum/2018 &7 Ors. resolution professional has been appointed by the National Company Law Tribunal (NCLT) on the petition filed by the Bank of India as financial creditor. On perusal of the record, it is seen that on previous occasion, one authorised signatory has requested for adjournment in view of the pendency of resolution process before the NCLT adjournment request, there is no name of the person who signed the adjournment request, nor any authority issued by the resolution professionals is enclosed. Further we find that, as by the coordinate bench in the case of in the case of . in ITA No. 2979 to 2981/Mum/2020, the professional was required to amend Form No. 36A for further prosecuting the appeal and in absence of which appeals maintainable. We find that in the instant case also resolution process has been initiated against the assessee and professional has taken over affairs of the company M/s Eskay Knit (India) ITA No. 1268/Mum/2018 &7 Ors. 4 resolution professional has been appointed by the National petition filed by the Bank of it is seen that on previous occasion, one authorised signatory has requested for adjournment in view of the pendency of resolution process before the NCLT, but, we find no name of the person who signed the adjournment request, nor any authority issued by enclosed. Further we find that, as the case of Orbit Corp , the resolution No. 36A for further prosecuting the appeal and in absence of which appeals were held to se also resolution and the resolution affairs of the company from the old management of the company and therefore he was required to amend the Form No. 36A, but despite several opp the Form No. 36A i.e. the form prescribed for filing appeal before the ITAT, has not been amended by the respective appeals. So in the circumstances, the appeals under consideration are not maintainable in present format. 4.1 Accordingly, aforesaid appeals maintainable at this stage, with liberty to file fresh appeals in pro format duly verified by the person the Income-tax Act, 1961 and ITAT Rules, 1963 restored by moving an appropriate application before the by both the assessee as well Revenue, Order pronounced in the Court. Sd/- (ABY T. VARKEY JUDICIAL MEMBER Mumbai; Dated: 06/06/2022 Dragon Legal/Rahul Sharma, Sr. P.S. ITA No. 1268/Mum/2018 &7 Ors. management of the company and therefore he was required to No. 36A, but despite several opportunities so far A i.e. the form prescribed for filing appeal before the has not been amended by the assessee and Revenue respective appeals. So in the circumstances, the appeals under consideration are not maintainable in present format. Accordingly, aforesaid appeals are dismissed being non maintainable at this stage, with liberty to file fresh appeals in pro format duly verified by the person authorized as per provisions of tax Act, 1961 and ITAT Rules, 1963 or get restored by moving an appropriate application before the by both the assessee as well Revenue, if so advised. ounced in the Court. Sd/- ABY T. VARKEY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT M/s Eskay Knit (India) ITA No. 1268/Mum/2018 &7 Ors. 5 management of the company and therefore he was required to ortunities so far A i.e. the form prescribed for filing appeal before the Revenue in their respective appeals. So in the circumstances, the appeals under consideration are not maintainable in present format. dismissed being non- maintainable at this stage, with liberty to file fresh appeals in proper as per provisions of or get these appeals restored by moving an appropriate application before the Tribunal - OM PRAKASH KANT) MEMBER 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// ITA No. 1268/Mum/2018 &7 Ors. Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai M/s Eskay Knit (India) ITA No. 1268/Mum/2018 &7 Ors. 6 Sr. Private Secretary) ITAT, Mumbai