MULTIVENTURE ESTATES PVT. LTD., Mumbai V. I.T.O. 10(2)(4), Mumbai

ITA 330/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5401 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: INVALID AB INITIO
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 115JB; 143(1); 147; 148; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 330 /MUM/201 8 ( / ASSESSMENT YEAR: 20 08 - 09 ) MULTIVENTURE ESTATES PVT. LTD SHO P NO. 21, ANURADHA SOCIETY, IRLA BRIDGE, NEXT TO FIRE BRIGADE STATION, ANDHERI (W), MUMBAI - 400058 . / VS. ITO 10(2)(4) AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AAFCM0264N ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 09 . 05 .201 9 / DATE OF PRONOUNCEMENT : 16 . 05 . 2019 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 31 .1 0 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 51 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 08 - 0 9 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE HON. CIT(A) ERRED IN DISMISSING THE APPEAL FILED FOR AY 2008 - 09, HOLDING THE SAME TO BE NOT MAINTAINABLE AND INVALID AB INITIO. REVENUE BY : SHRI S. K. MITRA (DR) ASSESSEE BY: NONE ITA NO. 330 / M/201 8 A.Y.20 08 - 09 2 2. THE HON. CIT(A) ERRED IN NOT GRANTING THE APPELLANT REASONAB LE OPPORTUNITY TO RECTIFY THE DEFECT IN FILING OF APPEAL FOR AY 20080 - 09. 3. THE HON. CIT(A) ERRED IN NOT APPRECIATING THAT THE RELEVANT MECHANISM TO FILE THE APPEAL ELECTRONICALLY WAS NOT IN PLACE ON 05.04.2016, WHEN THE APPELLANT FILED THE APPEAL IN PAPE R FORMAT AND THEREFORE THE APPELLANT WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE IN NOT FILING THE APPEAL ELECTRONICALLY. 4. THE HON. CIT(A) ERRED IN NOT APPRECIATING THAT THE RE - OPENING OF THE ASSESSMENT BY ISSUE OF THE NOTICE U/S 148 ON 30.03.2015 W AS NOT APPROPRIATE BY LAW AS THERE WAS NO REASON FOR THE LD. AO TO HOLD A BELIEF THAT ANY INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT AND THEREFORE THE RE - OPENING OF ASSESSMENT WAS NOT JUSTIFIED AND THE ASST. ORDER FLOWING THEREFROM BAD IN LAW. 5. THE HON. CIT(A) ERRED IN NOT APPRECIATING THAT ADDITION OF RS.2,00,00,000/ - MADE U/S 68 OF THE ACT, 1961, ON ACCOUNT OF FUNDS RECEIVED FROM M/S. VINAMRA UNIVERSAL TRADERS PVT. LTD. WAS NOT JUSTIFIED BY FACTS AND BY LAW AND THEREFORE SUCH ADDITION WAS REQUIRED TO BE DELETED. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 19 . 0 3 .20 0 9 FOR THE A.Y. 2008 - 09 DECLARING TO TAL I NCOME TO THE TUNE OF RS.1,01,758 / - UNDER THE NORMAL PROVISIONS OF THE INCOME TAX ACT, 1961 . T HE ASSESSEE HA S DECLARED THE BOOK PROFIT U/S 115JB OF THE ACT AT RS.1,01,785/ - . THEREAFTER, THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS REOPENE D U/S 147 OF THE I.T. ACT, 1961. THE NOTICE U/S 148 OF THE ACT, DATED 30.03.2015 WAS ISSUED AN D SERVED UPON THE ASSESSEE . THEREAFTER, NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE FAILED TO EXPLAIN CASH CREDIT U/S 68 OF THE I.T. ACT, 1961 IN SUM OF RS.2,00,00,000/ - FORM M/S. VINAMRA UNIVERSAL TRADERS PVT. LTD. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.2,01,01,758/ - FEELING AGGRIEVED , THE ASSESSEE FILED AN ITA NO. 330 / M/201 8 A.Y.20 08 - 09 3 APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS GONE THROUGH THE RECORD CAREFULLY. WE NOTICED THAT THE CIT(A) DID NOT DECIDE THE CASE ON MERITS. THE ASSESSEE FILED THE APPE AL MANUALLY BEFORE THE CIT(A) 17 ON 05 .04 .2016 WHICH WAS WELL - IN - TIME BEING THE AO PASSED THE ORDER ON DATED 15.03.2016 . THE CIT(A) HAS DISMISSED THE APPEAL ON ACCOUNT OF NON - FILING THE APPEAL ELECTRONICALLY . ON APPRAISAL OF THE RECORD, WE NOTICED THAT IN FACT THE ASSESSEE HAS FILED THE APPEAL M ANUALLY ON 05 .04.2016 WHICH WAS WELL IN TIME. TECHNICALLY FLAW CANNOT BE TREATED AS HURDLE FOR THE EXECUTION OF THE JUSTICE. THE ASSESSEE HAS CHALLE NGED THE ADDITION OF RS.2 CRORES RAISED U/S 68 OF THE ACT . MOREOVER, THE CIT(A) DID NOT DECIDE THE MATTER OF CONTROVERSY ON MERITS, THEREFORE, IN THE INTEREST OF JUSTICE , W E SET ASIDE THE FINDING OF THE CIT(A) AND RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCO RDINGLY, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 16 /05/2019 . SD/ - SD / - / - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 16 / 05/2019 VIJAY ITA NO. 330 / M/201 8 A.Y.20 08 - 09 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI