GALAXY ENTERTAINMENT CORPN. LTD, MUMBAI V. ASST CIT CEN CIR 47, MUMBAI

ITA 2685/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2449 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R KAVITHA
• Assessee Lawyers: ADITYA R AJGAONKAR
• Keywords: Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE, SHRI SHAMIM YAHYA, JUDICIAL MEMBER AND SHRI PAWAN SINGH, ACCOUNTANT MEMBER ITA NO. 2685/MUM/2017 (ASSESSMENT YEAR 20 10-11 ) GALAXY ENTERTAINMENT CORPORATION LTD. 4 TH FLOOR, SOBO CENTRAL MALL, NEAR HAJI ALI NO.28, PT. MADAN MOHAN MALVIYA BHAWAN, M.K. ROAD, CHURCHGATE, MUMBAI-400020. PAN: AABCG2464J VS. ACIT CENTRAL CIRCLE-8(4) 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT ITA NO. 2686/MUM/2017 (ASSESSMENT YEAR 2011-12 ) GALAXY ENTERTAINMENT CORPORATION LTD. 4 TH FLOOR, SOBO CENTRAL MALL, NEAR HAJI ALI NO.28, PT. MADAN MOHAN MALVIYA BHAWAN, M.K. ROAD, CHURCHGATE, MUMBAI-400020. PAN: AABCG2464J VS. ACIT CENTRAL CIRCLE- 8(4) 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI ADITYA R. AJGAONKAR ADVOCATE RESPONDENT BY : MS R. KAVITHA (DR) DATE OF HEARING : 29.08.2018 DATE OF PRONOUNCEMEN T : 29.08.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE TWO APPEAL BY ASSESSEE ARE DIRECTED AGAINST T HE SEPARATE ORDERS OF LD. CIT(A)-50, MUMBAI DATED 23.11.2016 FOR ASSESSMENT Y EAR 2010-11 & 2011-12. IN BOTH THE APPEALS THE ASSESSEE HAS RAISE D IDENTICAL GROUNDS OF APPEAL EXCEPT VARIATION OF FIGURES ,HENCE, BOTH THE APPEALS WERE CLUBBED, ITA NO. 2685 & 2686/MUM/2017 -GALAXY ENTERTAINMENT CORPORATION LTD. 2 HEARD AND ARE DECIDED BY COMMON ORDER. FOR APPRECIA TION OF FACTS WE ARE REFERRING THE FACT FOR ASSESSMENT YEAR 2010-11. IN ASSESSMENT YEAR 2010- 11, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW APPLICABLE THERETO, THE LD. CIT(A) ERRED IN PASSING EX-PARTE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW APPLICABLE THERETO, THE LD. CIT(A) ERRED IN DISALLOWING SERVICE TAX RECEIVA BLE WRITTEN OFF DURING THE YEAR AMOUNTING TO RS. 95,85,000/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW APPLICABLE THERETO, THE LD. CIT(A) ERRED IN NOT REDUCING THE FOREIGN EXCHAN GE FLUCTUATION GAIN ON REVALUATION OF SUNDRY CREDITORS TOWARDS THE PURCHAS E OF FIXED ASSETS AMOUNTING TO RS. 47,48,723/-. 4. THE APPELLANT PRAYS THAT VARIOUS DISALLOWANCE/AD DITIONS CONFIRMED BY THE CIT(A) MAY BE DELETED. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS REVISED RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 ON 06.05.2011 DE CLARING NIL INCOME. THE RETURN OF INCOME WAS SELECTED FOR SCRUT INY. THE ASSESSMENT ORDER WAS PASSED ON 12.02.2013 UNDER SECTION 143(3) . THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER ASSESSED THE LOSS OF RS. 9,51,95,255/- AGAINST THE RETURNED LOSS OF RS. 10,4 7,80,255/-, DISALLOWED SERVICE TAX RECEIVABLE RETURN OF RS. 95,85,000/- AN D NOT ALLOWED IN REDUCING THE FOREIGN EXCHANGE FLUCTUATION GAIN ON R EVALUATION OF SUNDRY CREDITORS TOWARDS THE PURCHASE OF FIXED ASSETS AMOU NTING TO RS. 47,48,723/-. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRMED. THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS RAISED FILED THE PRESENT A PPEAL BEFORE US. ITA NO. 2685 & 2686/MUM/2017 -GALAXY ENTERTAINMENT CORPORATION LTD. 3 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GROUND NO.1 RELATES T O DENIAL OF OPPORTUNITY AND PASSING THE IMPUGNED ORDER AS EX-PARTE. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) HAS NOT GIVEN PROPER OP PORTUNITY TO THE ASSESSEE TO EXPLAIN THE FACTS OF THE CASE. THE LD. CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE. THE LD. CIT(A) HAS NOT GI VEN ANY REASONABLE AND PROPER OPPORTUNITY AND CONFIRMED THE ORDER OF AS SESSING OFFICER. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSE E HAS SUFFERED PREJUDICE IN NOT GRANTING SUFFICIENT OPPORTUNITY BY THE LD. C IT(A) AND PRAYED THAT ALL THE GROUNDS OF APPEAL MAY BE RESTORED TO THE FILE O F LD. CIT(A) FOR ADJUDICATION OF THE CLAIMS ON MERIT. THE LD. AR OF THE ASSESSEE UNDERTAKE ON BEHALF OF ASSESSEE THAT THE ASSESSEE WOULD BE VI GILANT TO PURSUE THE MATTER DILIGENTLY BEFORE THE LD. CIT(A). 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE VEHEM ENTLY OPPOSED THE CONTENTION OF LD. AR OF THE ASSESSEE. THE LD. DR FU RTHER SUBMITS THAT ASSESSEE WAS GIVEN FIVE OPPORTUNITIES TO APPEAR BEF ORE THE LD. CIT(A), WHEN NONE APPEARED ON BEHALF OF ASSESSEE, THE LD. CIT(A) LEFT NO OPTION EXCEPT TO DECIDE THE APPEAL OF THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. DR FOR THE REVENUE FUR THER SUBMITS THAT ASSESSEE DOES NOT DESERVE ANY LENIENCY AS THEY THEM SELVES WAS APPEARED AND NOT EXPLAINED THE REASONS OF NON-APPEARANCE BEF ORE THE LD. CIT(A). ITA NO. 2685 & 2686/MUM/2017 -GALAXY ENTERTAINMENT CORPORATION LTD. 4 5. WE HAVE CONSIDERED THE SUBMISSION OF LD REPRESENTAT IVES OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF CIT(A). THE LD. CIT(A) IN PARAGRAPH-5 OF HIS ORDER HAS RECORDED THAT HE HAS F IXED THE HEARING ON 24.08.2015, 05.11.2015, 18.03.2016, 27.10.2016 AND 22.11.2016. WE HAVE NOTED THAT THE LD. CIT(A) FAILED TO RECORD HIS SATI SFACTION, IF THE NOTICES SENT TO THE ASSESSEE WAS DULY SERVED OR NOT OR THE SAME WAS ACKNOWLEDGED BY THE ASSESSEE. THE LD. CIT(A) HAS NOT MENTIONED A S TO HOW THE NOTICE WAS SERVED EITHER BY WAY OF SPECIAL MESSENGER, REGI STERED POST, SPEED- POST, PASTING OF ANY OTHER MODE OF SERVICE. THE FAC T REMAINS THAT THE ASSESSEE REMAINED EX-PARTE DURING THE FIRST APPELLA TE STAGE. THE ORDER IMPUGNED BEFORE US WAS PASSED IN ABSENCE OF ASSESSE E. CONSIDERING THE CONTENTION OF BOTH THE PARTIES, WE DEEM IT APPROPRI ATE TO RESTORE ALL THE ISSUES/GROUNDS OF APPEAL TO THE FILE OF CIT(A) TO DECIDE ALL THE CLAIMS/ISSUE OF THE ASSESSEE AFRESH. NEEDLESS TO SA Y THAT LD. CIT(A) SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE PASSING THE ORDER IN ACCORDANCE WITH LAW. 6. THE ASSESSEE IS ALSO DIRECTED TO APPROACH THE LD. C IT(A) WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER TO FIX THE DATE OF H EARING OF THE APPEAL. ON RECEIPT OF THE ORDER THE LD CIT(A) SHALL FIX THE DA TE OF HEARING. THE ASSESSEE IS FURTHER DIRECTED TO FILE ALL RELEVANT D OCUMENTARY EVIDENCE IN HIS POWER AND POSSESSION BEFORE THE LD. CIT(A) AND NOT TO SEEK THE TIME ITA NO. 2685 & 2686/MUM/2017 -GALAXY ENTERTAINMENT CORPORATION LTD. 5 WITHOUT ANY VALID REASONS. IN THE RESULT THE APPEA L IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ITA NO. 2686/MUM/2017 AY 2011-12 8. THE ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL , THE IMPUGNED ORDER FOR THE YEAR CONSIDERATION WAS ALSO PASSED EX-PARTE BY LD CIT(A). AS WE HAVE ALLOWED THE IDENTICAL GROUNDS OF APPEAL FOR AY 2010-11 AND RESTORE THE MATTER TO THE FILE OF CIT(A) IN ITA NO. 2685/M/ 2017; THEREFORE, THIS APPEAL OF ASSESSEE IS ALSO ALLOWED WITH SIMILAR DIR ECTION. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR AY 201 1-12 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 /08/2018. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 29.08.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI