AMI DEEPAK SHAH, MUMBAI V. NATIONAL FACELESS APPEAL, DELHI

ITA 2629/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5867 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 13-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 26-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Non compliance
• Section: 147; 148; 143(3); 143(1); 80IA; 80IC; 143(2); 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND MS. KAVITHA RAJAGOPAL, JM ITA Nos. 2632,2630,2629,2627,2656,2655/Mum/2023 (Assessment Year: 2009-10 to 2014-15) Am i Deepak Shah, A-103, Sanja y Bui l ding No.5 A.K. Road, Mit tal I ndl Estate, Andheri Eas t, Mum bai-400 059 Vs. National Faceless Appeal, Delhi (Appellant) (Respondent) PAN No. ABEPS4543D Assessee by : Shri Rajiv Khandelwal & Shri Neelkanth Khandelwal, ARs Revenue by : Shri Manoj Kumar Sinha, DR Date of hearing: 14.11.2023 Date of pronouncement : 20.11.2023 O R D E R PER BENCH: 01. These are the six appeals filed by the assessee from A.Y. 2009-10 to 2014-15, against the order of the Commissioner of Income-tax (Appeals) [the learned CIT (A)] passed on 29 th May, 2023, for A.Y. 2009-10, 2010- 11, 2011-12, 2012-13 and 2014-15 and on 20 th May, 2023, for A.Y. 2013-14, wherein the appeals filed by the assessee against the assessment order passed under Section 143(3) read with section 147 of the Income-tax Act, 1961 (the Act) by the ITO ward 24(1)(1), Mumbai, the learned Assessing Officer on 23 rd December, 2016, for A.Y. 2009-10, on 20 th December, 2017, for A.Y. 2010-11 and on 21 st December, 2017 for A.Y. 2011-12 and 2012- Page | 2 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 13 and on 26 th December, 2016 for A.Y. 2014-15 and on 28 th March, 2016 for A.Y. 2013-14 respectively, were dismissed, holding that assessee did not respond to the various notices issued and therefore, for want of prosecution, were dismissed. 02. Thus, these appeals were dismissed holding that the notices issued by the learned CIT (A) were not responded and therefore, the orders of the learned Assessing Officer were upheld. 03. Assessee aggrieved for all these six assessment years against that appellate orders. 04. The fact for A.Y. 2009-10, which is the lead year shows that the assessee is an individual engaged in the business of manufacturing and trading of furniture items. She filed her return of income for A.Y. 2009-10 on 29 th September, 2009, declaring total income of ₹3,14,780/-, after claiming deduction of ₹81,71,138/- under Section 80IA of the Act. The return was processed under Section 143(1) of the Income-tax Act, 1961 (the Act). 05. Subsequently, information was received from DDIT, Investigation Wing, Unit 4(4), Mumbai, vide letter dated 4 th March, 2016, wherein information received from Dy. Director of Central Excise, Mumbai shows that M/s Amardip Design being proprietary concern of the assessee started its Roorkie unit operations from A.Y. 2008-09 and claimed deduction from A.Y. 2008-09. However, the information forwarded shows that no production was done at Roorkie plant but production was done at Daman unit, Page | 3 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 which is the unit of assessee’s sister concern M/s Amardeep Sitting Systems. Thus, the assessee has claimed false deduction under Section 80IC of the Act. 06. Therefore, notice under Section 148 of the Act was issued on 29 th March, 2016. On 4 th November, 2016, assessee submitted that the return filed on 29 th September, 2009, may be considered as return in response to notice under Section 148 of the Act. On 4 th November, 2016, assessee was provided with the reasons recorded for reopening. 07. Subsequently, notice under Section 143(2) of the Act was also issued on 4 th November, 2016. On 4 th November, 2016, as per the order sheet entry, assessee did not have any objection against the reopening. The learned Assessing Officer recorded the information at paragraph no. 4 and 4.1 of the assessment order. As per paragraph no.4.2, assessee submitted that as she fulfills all the conditions for claim of deduction under Section 80IC of the Act, it should be allowed. The learned Assessing Officer noted that as per the information received from the Central Excise, on the basis of search, shows that the goods were never manufactured at Roorkie but at Daman. However, invoices were raised from Roorkie and sales were booked at Roorkie. He rejected the evidences submitted by the assessee in the form of electricity bills, employee details, bank account details, details of addition of fixed assets, provident fund returns, excise returns and sales tax returns. The learned Assessing Officer rejected all those evidences and denied the deduction of ₹79,40,225/- and passed an assessment order under Page | 4 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 Section 143(3) read with section 147 of the Act on 23 rd December, 2016. The total income of the assessee was determined at ₹82,55,000/-. 08. The assessee preferred the appeal before the learned CIT (A). The learned CIT (A) issued notice to the assessee on 13 th January, 2021, where the date of compliances on 18 th January, 2021, and no response was received from the assessee. The learned CIT (A) further issued a notice on 29 th July, 2022, fixing the date of compliances on 8 th August, 2022, assessee also did not respond to this. On 1 st November, 2022, the learned CIT (A) opened a communication window and this was also not responded. On 13 th December, 2022, another notice was issued for compliance on 26 th December, 2022, assessee did not respond to that. On 29 th April, 2023, another notice was issued, where the compliance date was fixed on 15 th may, 2023, which also failed to draw any response from the assessee. 09. Therefore, the learned CIT (A) was of the view that assessee has not pursued the appellate proceedings and failed to respond to the various notices. The learned CIT (A) then relied upon many judicial precedents and decided the appeal ex-parte for non prosecution. 010. He also held that in absence of several opportunities granted to the assessee, assessee failed to respond and therefore, the order of the learned Assessing Officer was upheld. Page | 5 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 011. For A.Y. 2010-11 also, where on identical facts the deduction of ₹56,63,860/- was denied by the learned Assessing Officer, on appeal before the learned CIT (A), assessee did not respond on 13 th January, 2021, 29 th July, 2022, 1 st November, 2022 and 28 th April, 2023. Accordingly, it reached the same fate. 012. For A.Y. 2012-13, against the assessment order passed by the learned Assessing Officer, denying the deduction of ₹52,14,591/-. In appeal before learned CIT (A) on all the above four occasions, the assessee did not respond and therefore, it reached the same fate. 013. For A.Y. 2012-13, the learned Assessing Officer denied the deduction of ₹89,03,460/- and on appeal before the learned CIT (A) on all the four occasions, no response was made and therefore, identical appellate order was passed. 014. For A.Y. 2014-15, the deduction of ₹20,34,494/- was denied and in appellate proceedings, assessee did not turn up on five different occasions and therefore, similar appellate order was passed. 015. For A.Y. 2013-14, the learned Assessing Officer denied the deduction of ₹1,11,01,059/-, and in appeal on five occasions, assessee did not respond and therefore, similar appellate order was passed. 016. Therefore, in all these appeals it is the non compliance of the assessee before the learned CIT (A), which has resulted into passing of the order ex-parte, on account of non-appearance. Page | 6 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 017. The learned Authorized Representative subsequently, referred that in the present case, the notice might have been sent at the address of [e-mail] but there is a change in the email id of the assessee at [e-mail] and for this reason perhaps, the email sent to the assessee could not be replied therefore, there is a non compliance reported by the appellate authority. It was further stated that even otherwise, there is no reference in the appellate order that whether such emails are received by the assessee or not. It is also not available from the record that whether the notices were sent on ITBA or only on email. He further stated that assessee is a lady and therefore, it might have missed her attention even if the emails are sent to the old address. He referred to form no.35, wherein the address to which the notices were sent to the appellant is mentioned at serial no.17 of Form no.35 and categorically stated that assessee did not receive any such notices. He further referred to Rule 5(J) of Faceless Appeal Scheme, 2021 and stated that assessee should be served the notice. Therefore, the order passed by the learned CIT (A) is not sustainable. 018. The learned Departmental Representative vehemently submitted that when the assessee has been served the notices on five to six different occasions but on all occasions, assessee failed to respond the same. The learned CIT (A) after stating so many judicial precedents have decided the issue. As nothing is required to be stated Page | 7 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 on the merits of the case, no fault can be found with the order of the learned CIT (A). 019. We have carefully considered the rival contentions and perused the orders of the lower authorities. We find that when appeal being preferred by the assessee before the learned CIT (A), assessee did not comply with the notices issued by the learned CIT (A). There is no denial of this fact. It is also not denied that notices have been issued to the email address mentioned by the assessee in the appeal memo. Before us, the claim of the assessee is that there is a change in the email address after filing of form no.35. This is not disputed by the Revenue. Even, according to Section 250(2) of the Act, the appellant have right to be heard at the hearing of the appeal. The learned CIT (A) has also not decided the appeal on the merits of the case and merely upheld the order of the learned Assessing Officer dismissing appeal on non prosecution. 020. Therefore, we are of the view that in the interest of justice, the assessee deserves one more opportunity. By this order, restoring all these appeals before the ld CIT (A) , we direct the assessee to furnish/ submits the paper books for all those six assessment years within 90 days from the date of receipt of this order before the learned CIT (A) and we also direct the learned CIT (A) that after considering the submission of the assessee and granting opportunity of hearing, if asked for, decide the issue afresh on the merits of the case, in accordance with the law. Page | 8 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 021. Accordingly, all the six appeals filed by the assessee are allowed as indicated above for statistical purposes. 022. In the result, all the six appeals filed by the assessee are allowed as indicated above for statistical purposes. Order pronounced in the open court on 20.11.2023. Sd/- Sd/- (KAVITHA RAJAGOPAL) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 20.11.2023 Sudip Sarkar, Sr.PS Page | 9 ITA No. 2632,2630,2629,2627,2656,2655/Mum/2023 Ami Deepak Shah, A.Y. 2009-10 to 2014-15 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai