ORBIT CORPORATION LTD, MUMBAI V. DCIT CEN CIR 47, MUMBAI

ITA 2979/MUM/2013

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3318 (ITAT-MUMBAI)
• Duration Of Justice: 9 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority; Liquidation
• Section: 143(3); 153A; 14A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “C”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER ITA Nos.2979, 2980 & 2981/M/2013 Assessment Years: 2008-09, 2009-10 & 2010-11 M/s. Orbit Corporation Ltd., The View, 165, Dr. Annie Besant Road, Worli, Mumbai – 400 012 PAN: AAACO3920A Vs. Dy. CIT, Central Circle-47, Mumbai (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri Jasdeep Singh, CIT D.R. Date of Hearing : 06 . 04 . 2022 Date of Pronouncement : 29 . 04 . 2022 O R D E R Per Bench: For the sake of brevity aforesaid appeals bearing common question of law and facts are being disposed of by way of composite order. 2. The appellant, M/s. Orbit Corporation Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeals, sought to set aside the impugned order dated 28.02.2013 passed by Commissioner of Income Tax (Appeals)-38, Mumbai [hereinafter referred to as the CIT(A)] qua the assessment years 2008-09 & 2009-10 on the identically worded grounds inter alia that :- ITA Nos.2979, 2980 & 2981/M/2013 M/s. Orbit Corporation Ltd. 2 “On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing the Purchases of Rs.17,43,94,317/- Rs.9,71,37,382/- & Rs.86,522/- for A.Y. 2008-09, 2009-10 & 2010-11 respectively during the year in question without appreciating the fact that the said purchases were not even debited to the Profit & Loss Account for the year in question owing to the nature of accounting being regularly followed by the Appellant. 2. On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing the Purchases of Rs. 17,43,94,317/-, Rs.9,71,37,382/- & Rs.86,522/- for A.Y. 2008-09, 2009-10 & 2010-11 respectively during the year in question without appreciating the fact that the said purchases were to be taxed in the year of completion of the Project owing to the nature of accounting being regularly followed by the Appellant. 3. On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing the claim of deduction u/s. 80IB(10) of Rs.1,35,27,89,940/-, Rs.36,69,95,593/- & Rs.31,73,34,449/- for A.Y. 2008-09, 2009-10 & 2010-11 respectively on the alleged plea that the conditions specified for claiming the deduction u/s.80IB were not complied by the appellant, without considering the facts and circumstances of the case. 4. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing a sum of Rs.68,87,034/-, Rs.1,44,000/- & Rs.1,44,000/- for A.Y. 2008-09, 2009-10 & 2010-11 respectively u/s.14A of the Income Tax Act, 1961 by invoking the rule 8D, without considering the facts and circumstances of the case. 5. The appellant craves leave to add, amend, alter or delete the said ground of appeal.” 3. Briefly stated facts necessary for adjudication of the controversy at hand are: the assessee is into the business of builders and developers. On the basis of search and seizure operation carried out under section 132(1) of the Income Tax Act, 1961 (for short ‘the Act’) on the assessee and its group companies on 11.02.2010, proceedings under section 153A of the Act were initiated for A.Y. 2004-05 to 2010-11. Declining the contentions raised by the assessee the AO made addition on account of bogus ITA Nos.2979, 2980 & 2981/M/2013 M/s. Orbit Corporation Ltd. 3 expenses, on account of 80IB projects and on account of disallowance under section 14A of the Act and thereby framed the assessment at Rs.2,17,42,68,640/-, Rs.68,50,73,400/- & Rs.60,33,56,410/- for A.Y. 2008-09, 2009-10 & 2010-11 under section 153A read with section 143(3) of the Act respectively. 4. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has partly allowed the same. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing the present appeals. 5. Despite issuance of the notice to the assessee company none appeared on behalf of it, so the Bench decided to decide these appeals on the basis of material available on record with the assistance of the Ld. D.R. for the Revenue. 6. We have heard the Ld. Departmental Representative for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 7. At the very outset, it is brought to the notice of the Bench by the Ld. D.R. for the Revenue that winding up proceedings against the assessee have already been initiated by the Hon’ble Bombay High Court in Company Petition No.644 of 2016 presented by Capri Global Advisory Services Pvt. Ltd. (the Petitioner) and the provisional liquidator was appointed under the Companies Act. It is also brought on record that subsequently by further order dated 12.04.2018 passed in the Company Petition No.593 of 2015 presented by Nina Concrete Systems Pvt. Ltd. (the petitioner) the ITA Nos.2979, 2980 & 2981/M/2013 M/s. Orbit Corporation Ltd. 4 company was ordered to be wound up and finally liquidator has been appointed under Companies Act, 1956. 8. In view of the matter, we are of the considered view that under section 94A of the Act “Winding up” means winding up under Insolvency & Bankruptcy (I & B) Code, 2016. Legislature by way of amendment in the I&B Code, 2016 made it clear that the word “winding up” mentioned in the Companies Act, 2013 is synonymous to the word “Liquidation” as mentioned in the I&B Code, 2016. 9. So we are of the considered view that once the winding up proceedings have already been initiated against the assessee vide order dated 12.04.2018 present appeal by the assessee as well as Revenue are not maintainable in the present format as the liquidator has not come up before the Tribunal despite numerous notices to file the amended form 36A in the assessee as well as Revenue’s appeal. So in these circumstances appeals under consideration are not maintainable in the present format. 10. Resultantly, aforesaid appeals are dismissed being not maintainable at this stage, with liberty to file fresh appeals in proper format duly verified by the person authorized to file the return of income or to get the present appeals restored by moving an application by the competent authority. Order pronounced in the open court on 29.04.2022. Sd/- Sd/- (OM PRAKASH KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 29.04.2022. * Kishore, Sr. P.S. ITA Nos.2979, 2980 & 2981/M/2013 M/s. Orbit Corporation Ltd. 5 Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.