JUHI'S IDEA MERCANTILE PVT LTD (NOW AMALGAMATED WITH NNGD LEASING AND TRADING PVT LTD), MUMBAI V. ITO - 12 (3) (1), MUMBAI

ITA 2604/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5324 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 12-11-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 24-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON’BLE JUDICIAL MEMBER & SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited {Now Amalgamated with NNGD Leasing and Trading Private Limited} 102, Jumuna CHS Ltd., Plot No. 65 Sher-E-Punjab Society, Mahakali Caves Road Andheri (E), Mumbai - 400093 PAN: AABCJ3252F v. ITO – 12(3)(1) Aayakar Bhavan, M.K. Road Mumbai - 400020 (Appellant) (Respondent) Assessee Represented by : Shri Vipul Joshi Department Represented by : Shri Ankush Kapoor Date of Conclusion of Hearing : 13.11.2023 Date of Pronouncement : 14.11.2023 O R D E R PER BENCH 1. These appeals are filed by the assessee against different orders of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short “Ld.CIT(A)”] dated 12.05.2023 for the A.Ys. 2010-11 and 2012-13. ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited Page No. 2 2. Since the issues raised in both these appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed off by this consolidated order. We are taking Appeal in ITA.No.2603/MUM/2023 for Assessment Year 2010-11 as a lead appeal. 3. Assessee has raised following grounds in its appeal: - “1. THE ORDER BAD, ILLEGAL AND WITHOUT JURISDICTION 1.1 In the facts and the circumstances of the case, and in law, the appellate order framed by the Commissioner of Income-tax (Appeals), National Faceless Appeal Centre, Delhi ("NFAC") [Ld. CIT (A)'] be held as bad, and illegal and without jurisdiction, as: (i) The same is framed in breach of the statutory provisions and the scheme: (ii) The same is passed without application of mind to the facts. 2. THE APPEAL IS MAINTAINABLE 2.1 The Ld. CIT (A) erred in treating the appeal as being non- maintainable. 2.2 While doing so, the Ld. CIT (A) failed to appreciate that the appeal was filed physically and the Appellant had filed the submissions before Ld. CIT (A) 12, Mumbai and the appeal was pending for remand report. 2.3 The Ld. CIT (A) further failed to appreciate that all the details sought for, including the Form 35, Grounds of Appeal, Statement of Facts, Challan of fees, Notice of Demand, Assessment Order, submissions of the Appellant were already available as records with the Department. 2.4 It is submitted that in the facts and the circumstances of the case, and in law, the appeal is maintainable. WITHOUT PREJUDICE TO THE ABOVE 3. ADDITION OF RS. 1,96,00,000/- ON ACCOUNT OF ALLEGED UNDERVALUATION OF CLOSING STOCK OF SHARES ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited Page No. 3 3.1 The A.O. erred in making addition of Rs. 1,96,00,000/- on account of alleged undervaluation of closing stock of shares. 3.2 While doing so, the A.O. erred in: (i) Basing his action only on surmises, suspicion and conjecture; (ii) Taking into account irrelevant and extraneous considerations; and (iii) Ignoring relevant material and considerations as submitted by the Appellant. 3.3 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for. 3.4 Without prejudice to the above, assuming-but not admitting - that some addition was called for, it is submitted that the computation of the addition made by the A.O. is arbitrary, excessive and not in accordance with the law.” 4. At the time of hearing, Ld.AR of the assessee submitted that National Faceless Appeal Centre, Delhi has dismissed the appeal of the assessee with the observation that assessee has filed the appeal on 18.04.2013 against the order under section 143(3) of Income-tax Act, 1961 (in short “Act”) dated 26.03.2013 for the A.Y. 2010-11. This appeal was migrated to National Faceless Appeal Centre, Delhi and despite repeated notices, none of the details sought by him were furnished by the assessee including the Form 35, Grounds of Appeal, Statement of Facts, Challan of appeal fees, Notice of Demand, Assessment Order till disposal of the appeal. Ld. AR submitted that all the above required details were ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited Page No. 4 submitted before Ld. CIT(A) and however, all these details were also submitted before us in the form of Paper Book to demonstrate that all these details are available. He prayed that the appeal may be remitted back to the file of the Ld. CIT(A) to consider the submissions of the assessee and decide the issue on merit. 5. On the other hand, Ld. DR has no specific objection on the above submissions made by the Ld.AR of the assessee. However, he agreed that this issue may be remitted back to the file of the Ld. CIT(A). 6. Considered the rival submissions and material placed on record, we observe that Ld. CIT(A) has dismissed the appeal by observing that none of the information relevant for the present appeal are not made available to him by the assessee to adjudicate the issue. However, it is brought to our notice that assessee has submitted all the informations and furthermore all these informations are available with him. Therefore, we direct the assessee to resubmit all the information before Ld. CIT(A), we are inclined to remit this issue back to the file of the Ld. CIT(A) in order to adjudicate the same afresh. Assessee shall cooperate with the proceedings before the Ld.CIT(A) without taking unnecessary ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited Page No. 5 adjournments. Needless to say that the Ld.CIT(A) shall provide adequate opportunity of being heard to the assessee. 7. In the result, appeal filed by the assessee is allowed for statistical purpose. ITA No. 2604/MUM/2023 (A.Y. 2012-13) 8. Coming to the appeal relating to A.Y. 2012-13, since facts in this case are mutatis mutandis, therefore the decision taken in A.Y. 2010-11 are applicable to this assessment year also. Accordingly, this appeal is allowed for statistical purpose. 9. In the result, appeal filed by the assessee is allowed for statistical purpose. 10. To sum-up, appeals filed by the assessee are allowed for statistical purpose. Order pronounced in the open court on 14 th November, 2023. Sd/- Sd/- (S. RIFAUR RAHMAN) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai / Dated 14.11.2023 Giridhar, Sr.PS ITA NOs. 2603 & 2604/MUM/2023 (A.Ys: 2010-11 & 2012-13) Juhi’s Idea Mercantile Private Limited Page No. 6 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum