KIRTAPUR NER CHOWK EXPRESSWAY LIMITED , MUMBAI V. THE INCOME TAX OFFICER. WARD, 14(2)(1), MUMBAI

ITA 2993/MUM/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5378 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 30-07-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 28-05-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRATIK RATHOD; PRESUMING
• Keywords: Business income; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “E”, MUMBAI BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER AND SHRI RATNESH NANDAN SAHAY, ACCOUNTANT MEMBER ITA Nos.2993, 2994 & 2995/M/2024 Assessment Years: 2015-16, 2016-17 & 2017-18 M/s. Kiratpur Ner Chowk Expressway Limited, Plot No.C22, G Block, The IL & FS Financial Centre, Bandra Kurla Complex, Bandra (East), Mumbai – 400 051 PAN: AAECK6763F Vs. Income Tax-Officer, Ward-14(2)(1), Aayakar Bhavan, Maharishi Karve Road, Mumbai – 400 020 (Appellant) (Respondent) Present for: Assessee by : Shri Pratik Rathod, A.R. Revenue by : Shri P.D. Chougule, [Addl. CIT] Sr.DR. Date of Hearing : 31 . 07 . 2024 Date of Pronouncement : 31 . 07 . 2024 O R D E R Per : Narender Kumar Choudhry, Judicial Member: These appeals have been preferred by the Assessee against the orders even dated 04.04.2024, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2015-16, 2016- 17 & 2017-18. ITA Nos.2993, 2994 & 2995/M/2024 M/s. Kiratpur Ner Chowk Expressway Limited 2 2. The issues involved in all the three appeals are identical and therefore for the sake of brevity, the same were heard together and are being disposed of by this composite order and considering ITA No.2993/M/2024 as a lead case and result of the same shall apply mutatis mutandis to all the three appeals under consideration. 3. Coming to ITA No.2993/M/2024, we observe that the Assessee had declared its total income at “Rs.Nil” by filing its return of income for the A.Y. 2015-16 on 30.09.2015, which was subsequently selected for complete scrutiny and consequently statutory notices were issued to the Assessee calling for details, in response to which the Assessee filed the relevant details. On perusing the details filed by the Assessee, the Assessing Officer (AO) observed that the Assessee company is engaged in the business of road construction, operation and maintenance and during the year under consideration has earned interest of Rs.1,33,61,068/- on fixed deposit and capitalized the same by treating it as business income and adjusted against the expenses incurred. Though the case of the Assessee was referred to transfer pricing, however, vide order dated 23.10.2018 u/s 92CA(3) of the Act the value of Assessee’s specified domestic transaction qua arms length price was not disturbed. Accordingly, the AO completed the scrutiny assessment u/s 143(3) r.w.s.92CA(3) of the Act vide order dated 21.12.2018, whereby the total income of the Assessee as per MAT u/s 115JB of the Act to the tune of Rs.(-) 99,77,941/- adding the interest income of Rs.1,33,61,068/- under the head “income from other sources” has been computed. The Assessee, being aggrieved, challenged the aforesaid addition, before the Ld. Commissioner, who though issued 5 notices to the Assessee, however, the Assessee except seeking adjournments on four occasions, made no compliance and therefore in the absence of any documentary evidence/information which the Assessee failed to file despite giving opportunities, the Ld. Commissioner dismissed the appeal of the Assessee by presuming and ITA Nos.2993, 2994 & 2995/M/2024 M/s. Kiratpur Ner Chowk Expressway Limited 3 holding “ that it can be safely presumed that the Assessee is not interested in pursuing its appeal and therefore the undersigned sees no reason to interfere with the order of the AO, thus the appeal raised by the Assessee is dismissed”. The Assessee, being aggrieved, is in appeal before us. 4. Heard the parties and perused the material available on record. Admittedly, in spite of affording various opportunities by the Ld. Commissioner, the Assessee made no compliance and on four occasions out of 5, sought adjournments only and therefore the Assessee does not deserve any leniency, however, considering the peculiar facts and circumstances in totality, as the Ld. Commissioner in the absence of relevant reply/documents was unable to decide the issue involved in its right perspective and proper manner, hence for the just decision of the case and for substantial justice, we are inclined to set aside the impugned order and consequently remanding the same to the file of the Ld. Commissioner for decision afresh, however, subject to deposit of token amount of Rs.11,000/- in the account of the Revenue Department within 15 days of the receipt of this order. Suffice to say, the Ld. Commissioner shall afford reasonable opportunity to the assessee to substantiate its claim before the Ld. Commissioner. 5. We also direct the assessee to cooperate with the appellate proceedings and to file the relevant submissions/documents which would be essential and required by the Ld. Commissioner for proper adjudication of the case. We clarify that in case of further default the assessee shall not be entitled for any leniency. Hence, the case is remanded accordingly. In the result, the instant appeal i.e. ITA No.2993/M/2024 filed by the Assessee stands allowed for statistical purposes in the above terms. ITA Nos.2993, 2994 & 2995/M/2024 M/s. Kiratpur Ner Chowk Expressway Limited 4 6. In the result, all the three appeals filed by the assessee are allowed for statistical purposes, in the above terms. Order pronounced in the open court on 31.07.2024. Sd/- Sd/- (RATNESH NANDAN SAHAY) (NARENDER KUMAR CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER * Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.