SHREE RAM URBAN INFRASTRUCTURE LTD, MUMBAI V. DCIT 7(2), MUMBAI

ITA 3539/MUM/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4096 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Opportunity of being heard; Proportionate interest
• Section: 143(3); 13

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 3539/MUM/2017 (ASSESSMENT YEAR 2009-10) M/S. SHREE RAM URBAN INFRASTRUCTURE LIMITED SHREE RAM MILLS PREMISES GANPATRAO KADAM MARG LOWER PAREL MUMBAI-400 013. PAN : AACCS0454P VS. DCIT-7(2) AAYAKAR BHAVAN M.K. ROAD CHURCHGATE MUMBAI- 400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY NONE DEPARTMENT BY SHRI T.S. KHALSA DATE OF HEARING 03.03.2021 DATE OF PRONOUNCEMENT 24.05.2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF LEARNED CIT(A) DATED 20.2.2017 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL READ AS UNDER :- 1. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) (HE REINAFTER REFERRED AS HON. CIT (A)) HAS ERRED IN PASSING THE APPELLATE ORD ER DISMISSING THE APPEAL STATING THAT THE APPEAL WAS NOT FILED IN TIME AND THE DELAY IN FILING APPEAL IS NOT CONDONED. IT IS SUBMITTED THAT THE APPLIC ATION FOR CONDONATION FOR DELAY IN FILING APPEAL WAS FILED AT T HE TIME OF FILING THE APPEAL WAS NOT ACCEPTED BY THE HON. CIT (A). IT IS SU BMITTED THAT THE HON. CIT (A) HAS NOT CONSIDERED THE REASONS FOR DELAY IN FILING APPEAL. IT IS THEREFORE PRAYED TO YOUR HONOUR TO CONSIDER SUCH DELAY IN FILING APPEAL AND NECESSARY DIRECTION SHALL BE GIVEN IN THIS REGAR D. 2. WITHOUT PREJUDICE TO GROUND NO. 1, THE HON'BLE COMMISS IONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE ORDER OF AS SESSING OFFICER IN REDUCING WIP ON ACCOUNT OF PROPORTIONATE DISALLOWANCE OF INTEREST EXPENSE OF RS.75,61,838/-CAPITALISED TO WIP MAINLY IN CURRED ON ACCOUNT OF SECURED LOANS ON THE PRETEXT THAT INTEREST FREE LOANS AND ADVANCES HAS BEEN EXTENDED FROM SECURED LOANS BY THE APPELLAN T. IT IS SUBMITTED THAT SUCH PROPORTIONATE INTEREST DISALLOWANCE WORKED OU T BY ASSESSING OFFICER AND CONFIRMED BY THE HON'BLE COMMISSIONER OF INCOME TAX M/S. SHREE RAM URBAN INFRASTRUCTURE LIMITED 2 (APPEAL) SHOULD BE DELETED AND NECESSARY DIRECTION SH OULD BE GIVEN IN THIS REGARD. 3. YOUR APPELLANT CRAVES TO ADD, ALTER, OR AMEND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THERE WAS A DEL AY OF ABOUT 13 MONTHS BY THE ASSESSEE IN FILING THE APPEAL BEFORE LEARNED CI T(A). THE ASSESSEE HAS STATED AS UNDER BEFORE LEARNED CIT(A) AS THE REASONABLE CA USE FOR THE DELAY. 'IT IS SUBMITTED THAT WE ARE IN RECEIPT OR THE ASSESSMENT ORDER U/S 143(3) R.W.S. 147 OF INCOME TAX ACT, 1961 ALONGWITH NOTICE O F DEMAND ON 28.03.2014, THE APPEAL AGAINST SUCH ORDER WAS REQUIR E TO BE FILED WITHIN 30 DAYS OF SERVICE OF NOTICE I.E. 26.04.2014. HOWEVER, THE CONCERN ACCOUNTANT HAD KEPT THE IMPUGNED ORDER AT AN IMPROPER PLACE, WH O LATER ON HAD LEFT THE APPELLANT ORGANIZATION IN THE MONTH OF APRIL, 2014 WIT HOUT HANDING OVER THE IMPUGNED ORDER DUE TO WHICH THE APPELLANT WAS NOT AWARE OF SUCH ORDER, RESULTING INTO APPEAL REMAINED TO BE FILED AT OUR END. 4. LEARNED CIT(A) WAS NOT CONVINCED. HE HELD AS UND ER : I HAVE CONSIDERED THE SUBMISSION. THE APPELLANT IN THE CONDONATION APPLICATION HAS SIMPLY MENTIONED THAT THE CONCERNED A CCOUNTANT HAS KEPT THE IMPUGNED ORDER AT AN IMPROPER PLACE AND LEFT THE OR GANIZATION IN APRIL 2014 WITHOUT HANDING OVER THE IMPUGNED ORDER TO THE A PPELLANT. THE SUBMISSION IS DEVOID OF ANY EVIDENCE. THE CASE OF TH E APPELLANT IS DULY REPRESENTED BY THE AUTHORISED REPRESENTATIVE. I AM UNA BLE TO ACCEPT THE FACT THAT THE APPELLANT IS UNAWARE OF THE FACT FOR ALMOST THIR TEEN MONTHS THAT THE ASSESSMENT ORDER IS PASSED BY THE A.O. IT IS NOT CLEAR AS TO HOW THE APPELLANT FINALLY RECEIVED THE ORDER, SINCE THE ACCOUNTANT HAS N OT HANDED OVER THE SAME TO THE APPELLANT. THEREFORE THE SUBMISSION OF THE APPELLANT DOES NOT LOOK PLAUSIBLE AND SUBSTANTIAL DELAY OF AROUND 13 MO NTHS M FILING THE APPEAL IS NOT ACCEPTED AND DELAY IN FILING THE APPEAL IS NO T CONDONED. 5. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL B EFORE US. 6. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RECORD. WE NOTE THAT LEARNED CIT(A) HAS DECLINED TO CONDONE THE DELAY BY WONDERING HOW THE ASSESSEE COME TO KNOW ABOUT THE A SSESSING OFFICERS ORDER WHEN THE CONCERNED EMPLOYEE HAS LEFT THE ORGANIZATI ON. IT IS NOT APPEARING FROM THE LEARNED CIT(A)S ORDER AS TO WHETHER THIS QUESTION WAS EVEN PUT TO THE ASSESSEE FROM EXPLANATION. HENCE, PRIMA FACIE LEARN ED CIT(A) HAS NOT GRANTED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS QUERY. HENCE, IN THE INTEREST OF JUSTICE WE REMIT THIS ISSUE TO THE FILE OF LEARNED CIT(A). THE LEARNED M/S. SHREE RAM URBAN INFRASTRUCTURE LIMITED 3 CIT(A) IS DIRECTED TO CONSIDER THE ISSUE OF CONDONA TION OF DELAY AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THEREAF TER HE SHOULD DECIDE THE ISSUE AS PER LAW. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 24.5.2021. SD/- SD/- (AMARJIT SINGH) (SHA MIM YAHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 24/05/2021 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// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI