RATNAGIRI WIND POWER PROJECTS P.LTD, MUMBAI V. ITO 8(1)(1), MUMBAI

ITA 2828/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9947 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay
• Section: 143(3); 56; 139

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.2828/MUM/2017 : ASST.YEAR 2012-2013 M/S.RATNAGIRI WIND POWER PROJECTS PRIVATE LIMITED PLOT NO.4, JJ ARCADE, IPS-I, SANIVARPET NEAR PANKAJ HOTEK, NH-4, KARAD SATARA DISTRICT, MAHARASHTRA-415 110. PAN : AAECR8569E. / VS. THE INCOME TAX OFFICER WARD 8(1)(1) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI SHASHI TULSIYAN /RESPONDENT BY : SHRI V.JANARDHANAN (SR.DR) / DATE OF HEARING : 28.06.2017 / DATE OF PRONOUNCEMENT : 01.09.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 08.08.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-2013. 2. GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT THE DELAY IN FILING OF APPEAL COULD NOT BE CONDONED. IN DOING SO, LD.CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT WAS PREVENTED FROM SUFFICIENT CAUSE FROM FILING OF APPEAL WITHIN THE PRESCRIBED TIME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN NOT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE IN AS MUCH AS THE APPELLANT WAS NOT INFORMED OF ANY DEFICIENCY IN ITS CLAIM FOR CONDONATION OF DELAY AND NO SUFFICIENT OPPORTUNITY OF HEARING WAS GRANTED TO THE APPELLANT FOR PROVIDING CLARIFICATION WITH REGARD TO THE SAME. E DESERVES TO BE CANCELLED. ITA NO.2828/MUM/2017. M/S.RATNAGIRI WIND POWER PROJECTS PVT.LTD. 2 3. IN THIS CASE THE ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE INCOME-TAX ACT. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER MADE VARIOUS DISALLOWANCES, THE TOTAL OF WHICH CAME TO RS.25,14,431. UPON ASSESSEES APPEAL, LEARNED CIT(A) DID NOT CONDONE THE DELAY OF A FEW NUMBER OF DAYS AND DISMISSED THE APPEAL ON ACCOUNT OF DELAY IN FILING THE APPEAL. THE LEARNED CIT(A) DID NOT EVEN MENTION THE NUMBER OF DAYS BY WHICH THE APPEAL WAS DELAYED. 4. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I CAN GAINFULLY REFER TO THE STATEMENT OF FACTS SUBMITTED BY THE ASSESSEE WHICH READS AS UNDER:- 1. THE APPELLANT IS A COMPANY ENGAGED IN GENERATION POWER USING WIND BASED POWER GENERATION PLANT. IT HAD FILED ITS RETURN OF INCOME U/S. 139 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') ON 29.09.2012 DECLARING TOTAL INCOME OF RS. NIL. THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT. THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS SELECTED FOR SCRUTINY BY ISSUE OF NOTICE U/S. 143(2) OF THE ACT ON 06.08.2013. THEREAFTER, THE ASSESSING OFFICER PASSED ORDER U/S 143(3) OF THE ACT WHEREIN HE MADE AN ADDITION OF RS. 33,60,407/- WITH RESPECT TO INTEREST INCOME U/S. 56 OF THE ACT AND A DISALLOWANCE OF EXPENSES OF RS. 33,03,219/- AS THE SAME WERE TREATED AS PRELIMINARY EXPENSES IN ABSENCE OF COMMENCEMENT OF BUSINESS. 2. THE APPELLANT FILED AN APPEAL BEFORE THE LD. CIT(A) ON 21.04.2015 CHALLENGING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT WITH RESPECT TO BOTH THE ADDITIONS. WHILE FILING THE SAID APPEAL, THERE WAS A DELAY OF 12 DAYS IN FILING OF APPEAL. ITA NO.2828/MUM/2017. M/S.RATNAGIRI WIND POWER PROJECTS PVT.LTD. 3 3. IT IS SUBMITTED THAT THE REGISTERED OFFICE AS WELL AS THE SITE OFFICE OF THE APPELLANT IS IN PALASHI, SATARA DISTRICT, MAHARASHTRA AND THE ADMINISTRATIVE OFFICE OF THE APPELLANT WAS IN HYDERABAD, TELANGANA, WHEREAS THE APPEAL WAS TO BE FILED IN MUMBAI. THE SITE OFFICE AND THE ADMINISTRATIVE OFFICE WERE CONNECTED THROUGH ROAD AND WAS AT A DISTANCE OF MORE THAN 480 KILOMETRES. 4. A LETTER WAS FILED BEFORE THE LD. CIT(A) ALONG-WITH AFFIDAVIT OF THE DIRECTOR WITH RESPECT TO CONDONATION OF DELAY IN FILING THE APPEAL. THE APPELLANT HAD EXPLAINED IN THE AFFIDAVIT THAT THERE WAS AN EMERGENCY AT THE PLANT OFFICE SITUATED AT PALASHI, SATARA DISTRICT, MAHARASHTRA. THAT THE APPEAL PAPERS WERE DISPATCHED IMMEDIATELY AS SOON AS THE PROBLEM AT PLANT WAS FIXED. HOWEVER, THE LD. CIT(A) DID NOT EXPRESS HIS DISSATISFACTION DURING THE COURSE OF HEARING AND NO FURTHER OPPORTUNITY WAS PROVIDED TO THE APPELLANT TO PROVE HIS CLAIM. 5. IT IS SUBMITTED THAT DURING THE RELEVANT PERIOD, THE DIRECTOR HAD TO BE URGENTLY PRESENT PLANT OFFICE IN SATARA DISTRICT, MAHARASHTRA AS SOME LOCAL GOONS WERE TRYING TO INTERFERE IN THE PROJECT ACTIVITIES. ON PRETEXT OF LITIGATION BY LOCAL FARMERS, THEY TRIED TO PROJECT THEMSELVES AS THE OWNERS OF ACQUIRED LAND BY MANIPULATING LAND RECORDS. THEY WERE THREATENING AND MAN HANDLING THE ENGINEERS, CONSULTANTS, CONTRACTORS AND FOREIGN PROFESSIONALS. FURTHER, THEY WERE DEMANDING HUGE SUM OF MONEY FOR BUYING PEACE OF MIND FROM THE COMPANY. THERE WERE 27 COMPLAINTS FILED ON THE COMPANY FOR LAND DISPUTE AND MANY COMPLAINTS WERE MULTIPLE COMPLAINTS FOR SAME PIECE OF LAND. THE COMPANY WAS IN THE PROCESS OF RESOLVING THE SAID ISSUE THROUGH PROPER LEGAL PROCEDURES AND WAS NOT INTENDING TO MAKE PAYMENTS TO LOCAL GOONS AND ANTISOCIAL ELEMENTS. BUT FOR THE PROTECTION OF ITS PROFESSIONALS, IT HAD SOUGHT DEPLOYMENT OF POLICE PROTECTION AT THE PROJECT SITE. 6. FOR THE PURPOSES OF RESOLVING THE ABOVE ISSUE, THE DIRECTOR WAS PRESENT AT PROJECT SITE AT SATARA DISTRICT. MAHARASHTRA. THE APPEAL WAS SIGNED AND POSTED IMMEDIATELY AS SOON AS THE PROBLEM AT PLANT WAS FIXED. IT IS ALSO SUBMITTED THAT THERE WAS A DELAY IN POSTAL COORDINATION AS THE AUDITORS OPERATED FROM ITA NO.2828/MUM/2017. M/S.RATNAGIRI WIND POWER PROJECTS PVT.LTD. 4 HYDERABAD WHEREAS THE COMPANY'S PLANT WAS LOCATED IN SATARA DISTRICT AND APPEAL WAS REQUIRED TO BE FILED IN MUMBAI. 7. IN LIGHT OF THE ABOVE FACTS, IT IS CLEAR THAT THERE WAS SUFFICIENT CAUSE FOR DELAY OF 12 DAYS IN FILING OF APPEAL BEFORE THE LD.CIT(A) AND THE DELAY WAS NOT DELIBERATE. THEREFORE, THE ACTION OF LD. CJT(A) IN NOT CONDONING THE DELAY WAS ERRONEOUS AND THE APPELLATE ORDER DESERVES TO BE SET ASIDE. 6. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, I FIND THAT THERE WAS REASONABLE CAUSE FOR THE DELAY OF 12 DAYS IN FILING THE APPEAL BEFORE THE LEARNED CIT(A). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN MY CONSIDERED OPINION, THE DELAY OUGHT TO HAVE BEEN CONDONED AND THE APPEAL DECIDED UPON MERITS. IT IS SETTLED LAW THAT WHEN THE INTEREST OF SUBSTANTIAL JUSTICE IS PITTED AGAINST THE SMALL TECHNICAL DELAYS, THE SAME SHOULD NOT BE A REASON TO DENY THE ASSESSEE PROPER DISPENSATION OF JUSTICE. HENCE, I CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A) AND REMIT THE MATTER TO THE FILE OF LEARNED CIT(A). THE LEARNED CIT(A) SHALL CONSIDER THE ISSUE ON MERITS AND THEREAFTER PASS A SPEAKING ORDER ON THE MERITS OF THE CASE. NEEDLESS TO ADD THAT ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 01 ST DAY OF SEPTEMBER, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 01 ST SEPTEMBER, 2017. DEVDAS* ITA NO.2828/MUM/2017. M/S.RATNAGIRI WIND POWER PROJECTS PVT.LTD. 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.