TRIMURTI FILMS PVT. LTD., MUMBAI V. ITO,WD-11(1)(4) NOW ITO WD-16(1)(4), MUMBAI

ITA 3018/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7790 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Keywords: Business income; Business expenditure; Principle of natural justice; Condonation of delay
• Section: 143(3); 154; 15

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SH. B. R. BASKARAN , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 3018 & 5247/MUM/2016 ( / ASSESSMENT YEAR: 2011 - 12 ) TRIMURTI FILMS PVT. LTD. B - 11, COMMERCE CENTRE, TARDEO ROAD, MUMBAI - 40003 4 / VS. ITO WD - 11(1)(4), NOW ITO WD - 16(1)(4), 4 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI ./ ./ PAN/GIR NO. A AACT4118M ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : DR. K. SHIVARAM, MS. NEELAM C. JADHAV & SHRI SASHANK DUNDU / RESPONDENTBY : SHRI V. VIDHYADHAR / DATE OF HEARING : 19/12 /201 7 / DATE OF PRONOUNCEMENT : 19/12/2017 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT TWO APPE AL S FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEAL) 4 , 2 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD MUMBAI DATED 09.12.15 AND 17.05 .16 RESPECTIVELY F OR AY 2011 - 12 . 2. SINCE, THE FACTS RAISED IN BOTH THE APPEALS FILED BY THE ASSESSEE ARE IDENTICAL, THEREFORE FOR THE SAKE OF CONVENIENCE; THEY ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. ITA NO. 3018/M/2016 . 3. FIRST OF ALL WE TAKE UP ASSESSEE S APPEAL IN ITA NO. 3018/M/2016 FOR AY 2011 - 12. 4. LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO LETTER DATED 23.04.16 WHICH RELATES TO CONDONATION OF DELAY IN FILING APPEAL BEFORE HONBLE ITAT. LD. AR SUBMITTED THAT THE PRESENT APPEAL COULD NOT BE FILED WITHIN TIME BECA USE THE DIRECTOR MR. RAJEEV RAI WAS OUT OF COUNTRY SINCE 13.02.16 AND RETURNED ON 07.04.16. IT IS FURTHER ARGUED THAT THE APPEAL, THOUGH READY, REMAINED TO BE FILED FOR WANT OF HIS PERUSAL AND SIGNATURE. LD. AR FURTHER SUBMITTED THAT THE E - PAYMENT OF APPEA L FILING FEES WAS COMPLETED ON 15.03.16 AND IN ORDER TO SUPPORT HIS CONTENTIONS THE ASSESSEE HAS ALSO PLACED ON RECORD COPY OF 3 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD PASSPORT SO AS TO SHOW THAT THE DIRECTOR SHRI RAJEEV RAI WAS NOT IN INDIA DURING THE ABOVE PERIOD. APART FROM ABOVE, THE ASSESSEE HAS ALSO FILED AFFIDAVIT OF SHRI RAJEEV RAI IN SUPPORT OF LETTER DATED 23.04.16. 5. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS APPLICATION FOR SEEKING CONDONATION OF DELAY AND WHILE TAKING INTO CONSIDERATION THE CONTENTS OF APPLICATION FILE D BY THE ASSESSEE AND FOLLOWING THE PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT IN CASE OF LAND ACQUISITION COLLECTOR VRS. MSTKITZI, AIR 1987 S.C. 1353 /(1987) 167 ITR 471 (SC), WE CONDONE THE DELAY OF 33 DAYS IN FILING THE APPEAL. RESULTANTLY, THIS APPL ICATION IS ALLOWED AND APPEAL IS ADMITTED TO BE HEARD ON MERITS. 6 . AS PER THE BRIEF FACTS OF THE CASE, THE ASSESSEE COMPANY IS ENGAGED IN FILM PRODUCTION, DISTRIBUTION AND IS ALSO IS IN THE BUSINESS OF RUNNING AND HIARING OF STUDIO. THE ASSESSEE HAS SHO WN INCOME /RECEIPT FROM STUDIO BUSINESS AT RS. 53,92,070/ - AND BROUGHT THE SAME TO TAX UNDER THE HEAD INCOME FROM HOUSE 4 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD PROPERTY. THE ASSESSEE APART FROM CLAIMING DEDUCTION FOR PROPERTY TAXES HAD ALSO CLAIMED DEDUCTION U/S 24A OF I.T. ACT. THE ASSESSEE HAD ALSO CLAIMED SEVERAL BUSINESS EXPENSES PERTAINING TO THE SAID STUDIO. THE AO AFTER CONSIDERING THE CASE OF THE ASSESSEE HAD PASSED ORDER OF ASSESSMENT U/S 143(3) DAT ED 14.03.14 THEREBY CONSIDERING THE INCOME FROM STUDIO AS BUSINESS INCOME AND ALSO MADE D ISALLOWANCE OF EXPENSES CLAIMED BY THE ASSESSEE. 7. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES DISMISSED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE ASSESSE E HAS PREFERRED THE PRESENT APPEAL. 8 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT L D. CIT(A) HAS ERRONEOUSLY PASSED AN EX - PARTE ORDER WITHOUT APPRECIATING THAT THE APPELLANT'S APPEAL FOR EARLIER ASSTT. YEAR 2010 - 11 WITH SOME IDENTICAL GROUNDS OF APPEAL WAS PART HEARD BY HIM AND THE REMAND REPORT WAS AWAITED 5 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD FROM THE A.O. LD. AR FURTHER SUBMITTED THAT T HIS FACT WAS ALSO BROUGHT TO THE NOTICE OF LD. CIT(A) BY ADJOURNMENT LETTERS DATE D 23.07.2015 AND 18.08.2015. IT WAS ALSO SUBMITTED THAT ON THE DATE OF ALLEGED NON - COMPLIANCE NO ORDER SHEET NOTING WAS TAKEN SINCE REMAND REPORT OF THE EARLIER ASSTT. YEAR 2010 - 11 WAS STILL PENDING. THE LD. AR FURTHER SUBMITTED THAT THE ORDER OF CIT(A) MAY BE SET ASIDE AND THAT THE LD. CIT(A) M AY BE DIRECTED TO HEAR THE APPEAL AFRESH BY GOING INTO THE MERITS AND FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 9 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAD INTENTIONALLY NOT APPE ARED BEFORE LD. CIT(A) AND THE ORDERS PASSED BY LD. CIT(A) NEEDS NO INTEREFERENCE. 10 . BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTING THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS 6 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD CASE BEFORE LD. CIT(A) THEN , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES D UE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION, WE SET ASIDE THE EX - PARTE OR DER PASSED BY LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE AND THEREAFTER PASS AFRESH ORDER ON ALL THE GROUNDS RAISED BY THE ASSESSEE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT(A) INDEPENDENTLY IN AC CORDANCE WITH LAW. RESULTANTLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. NOW WE DECIDE ITA NO. 5247/M/2016 FOR AY 2011 - 12. 11 . THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) DATED 17.05.16 PASSED U/S 15 4 OF THE I.T. ACT 1961. 7 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD SINCE WE HAVE ALREADY SET ASIDE THE ORDER OF LD. CIT( A) IN ASSESSEES APPEAL IN ITA NO. 3018/MUM/2016 FOR THE AY 2011 - 12 AND RESTORED THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECIDING AFRESH ON MERITS, THEREFORE THE PRESENT APPEAL FILED AGAINST THE ORDER PASSED BY LD. CIT(A) U/S 154 OF I.T. ACT, 1961 BE COMES INFRUCTUOUS AND IS THUS DISMISSED. 12 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IN ITA NO. 3018/M/16 IS ALLOWED FOR STATISTICAL PURPOSES AND APPEA L FILED BY THE ASSESSEE IN ITA NO. 5247 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DEC , 2017 SD/ - SD/ - ( B. R. BASKARAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 19 . 12 .201 7 SR.PS . DHANANJAY 8 I.T.A. NO. 3018 & 5247 /MUM/201 6 TRIMURTI FILMS PVT. LTD / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI