DCIT, CC - 5(2), MUMBAI V. M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., MUMBAI

ITA 304/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8488 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 22-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Corroborative evidences; Set aside
• Section: 5(2); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH MUMBAI BEFORE : SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI M.BALAGANESH, A CCOUNTANT MEMBER ITA NO. 304 /MUM/ 20 19 ( ASSESSMENT YEAR : 2015 - 16 ) DCIT - CC - 5(2) ROOM NO.1908, 19 T H FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI 400 020 MAHARASHTRA VS. M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., 396, KAMAT INDUSTRIAL ESTATE VEER SAVARKAR MARG PRABHADEVI, MUMBAI 400 025 PAN/GIR NO. AABCC2176K (APPELLANT ) .. (RESPONDENT ) ITA NO. 348 /MUM/ 2019 ( ASSESSMENT YEAR : 2015 - 16 ) M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., 396, KAMAT INDUSTRIAL ESTATE VEER SAVARKAR MARG PRABHADEVI, MUMBAI 400 025 VS. DCIT - CC - 5(2) ROOM NO.1908, 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI 400 020 MAHARASHTRA PAN/GIR NO. AABCC2176K (APPELLANT ) .. (RESPONDENT ) REVENUE BY MS. SHREEKALA PARDESHI ASSESSEE BY NONE DATE OF HEARING 11/08 /2021 DATE OF PRONOUNCEMENT 16 / 08 /202 1 ITA NO . 304/MUM/2019 & 348/MUM/2019 M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., 2 / O R D E R PER M. BALAGANESH (A.M) : THESE CROSS APPEAL S IN ITA NO. 304/MUM/2019 & ITA NO.348/MUM/2017 FOR A.Y. 2015 - 16 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 53, MUMBAI IN APPEAL NO. CIT(A) - 53/DCCC - 5(2)/IT - 423/2017 - 18 DATED 27/11/2018 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 18/12/2017 BY THE LD. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 5(2), MUMBAI (HEREINAFTER REFE RRED TO AS LD. AO). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE FIND THAT ASSESSMENT WAS FRAMED IN THIS CASE FOR A.Y.2015 - 16 U/S.144 OF THE ACT AS THERE WAS NO CO - OPERAT ION FROM THE SIDE OF THE ASSESSEE. BUT WE FIND THAT ASSESSEE HAD ELECTRONICALLY FILED ITS RETURN OF INCOME FOR THE A.Y.2015 - 16 ON 30/09/2015 DECLARING TOTAL INCOME OF RS.5,71,710/ - . THE LD. AO DETERMINED THE TOTAL INCOME OF RS.6,50,00,000/ - BY OBSERVING AS UNDER: - 6. CONSIDERING THE ABOVE FACTS OF THE ASSESSEES CASE AND INFORMATION AVAILABLE ON RECORD, THE TOTAL INCOME OF THE ASSESSEE IS ASSESSED AT RS.6,50,00,000/ - BEING NET OF LOSES OF CURRENT ASSESSMENT YEAR AND OF ALL THE EARLIER YEARS PUT TOGETHER A ND THE UNEXPLAINED SOURCES OF SHAREHOLDERS FUNDS, UNSECURED LOANS, CREDITORS ETC. PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT FOR CONCEALMENT OF INCOME IS INITIATED IN THIS CASE. 2.1. THIS ASSESSMENT WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(A). EVEN BEFORE THE LD. CIT(A), ASSESSEE HAD FURNISHED ONLY THE AUDITED FINANCIAL STATEMENTS AND TAX AUDIT REPORT THROUGH ITS MANAGER (TAXATION) WITHOUT ANY SUPPORTING DOCUMENTS. HOWEVER, THE LD. CIT(A) ITA NO . 304/MUM/2019 & 348/MUM/2019 M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., 3 ACCEPTED THE FACT THAT THE LD. AO OUGHT NOT T O HAVE DETERMINED THE INCOME OF THE ASSESSEE AT RS.6,50,00,000/ - IN THE MANNER STATED HEREINABOVE AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , PROCEEDED TO ESTIMATE THE PROFIT OF THE ASSESSEE A T 2% OF TURNOVER AND 10% OF RENT AND SERVICE CHARGE S. ACCORDINGLY, HE DIRECTED THE LD. AO TO DETERMINE THE TOTAL INCOME OF THE ASSESSEE AT RS.1.68 CRORES. 3. AGGRIEVED BY THIS ORDER , BOTH ASSESSEE AS WELL AS REVENUE ARE IN APPEAL BEFORE US. 4. WE FIND THAT THERE WAS ABSOLUTELY NO REPRESENTATION MADE BY THE ASSESSEE BEFORE BOTH THE LOWER AUTHORITIES. IN OUR CONSIDERED OPINION, THE MANNER OF DETERMINATION OF TOTAL INCOME ADOPTED BY THE LD. AO AS WELL AS BY THE LD. CIT(A) CANNOT BE ACCEPTED AS THEY ARE WITHOUT ANY BASIS. AT THE SAME TIME, THE ASSESSEES NON - CO - OPERATION BEFORE BOTH THE LOWER AUTHORITIES CANNOT BE IGNORED. EVEN BEFORE US, DESPITE THE NOTICE BEING SERVED ON THE ASSESSEE COMPANY, THERE WAS NO APPEARANCE FROM THE SIDE OF THE ASSESSEE. HOWEVER, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM IT FIT AND APPROPRIATE TO RESTORE THESE APPEALS TO THE FILE OF THE LD. AO FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT ASSESSEE BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS HEREBY DIRECTED TO PROVIDE ALL THE NEC ESSARY DETAILS WITH SUPPORTING EVIDENCES IN SUPPORT OF ITS RETURN BEFORE THE LD. AO AND ALSO FURNISH THE NECESSARY DETAILS AS CALLED FOR BY THE LD. AO FROM TIME TO TIME IN THE SET ASIDE PROCEEDINGS. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE WITH THE LD. AO FOR EXPEDITIOUS COMPLETION OF THE SET ASIDE ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE AS WELL AS BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF AFORESAID OBSERVATIONS. ITA NO . 304/MUM/2019 & 348/MUM/2019 M/S. CYBER INFOSYSTEMS & TECHNOLOGY PVT. LTD., 4 5. IN THE RESULT, APPEALS FILED BY TH E ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 16 / 08 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( VIKAS AWASTHY ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI ; DATED 16 / 08 / 2021 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//