PLEASURE TRADING PRIVATE LIMITED NOW MERGED WITH All Grow Finance & Investment Private Ltd., MUMBAI V. ITO WARD 2(2)(4), New Delhi

ITA 3957/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4068 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAVISH SOOD ( J M) I.T.A. NO. 3957 /MUM/ 2018 (ASSESSMENT YEAR 20 13 - 14 ) PLEASURE TRADING PVT. LTD. (NOW MERGED WITH ALL GROW FINANCE & INVESTMENTS PVT. LTD.) SHOP N O. 118 TIKONA PARK NIT, FARIDABAD HARYANA - 121 001. PAN : AAACA4941P V S . ITO WARD 2(2)(4) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI TARUN ROHTAGI DEPARTMENT BY SHRI CHAITNYA ANJARIA DATE OF HEARING 2.5 . 201 9 DATE OF PRONOUNCEMENT 6 . 5 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 28.3.2018 AND PERTAINS TO A.Y. 2013 - 14. 2. GROUNDS OF APPEAL READ AS UNDER : - L.THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE THE LEARNED CIT (A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL AS NOT MAINTAINABLE . 2. THAT THE LEARNED CIT (A) FAILED TO APPRECIATE THAT AS PER THE NOTIFICA TION NO.S.0.637(E) [N0.11/2016( F.NO.149/150/2015 - TPL) DATED 01.03.2016 ALL THE APPE ALS IN RESPECT OF ASSESSMENT ORDER DATED ON OR BEFORE 01.03.2016 CAN BE FILED MANUALLY AND ALL APPEALS IN RESPECT OF ASSESSMENT ORDER PASSED AFTER 01.03.2016 HAVE TO BE FILED ELECTRONICALLY . 3. WITHOUT PREJUDICE TO THE ABOVE GROUND THAT THE APPELLATE ORD ER HAS BEEN PASSED VIOLATING THE PRINCIPLES OF NATURAL JUSTICE BY NOT PROVIDING AN OPPORTUNITY OF HEARING TO REMOVE THE OBJECTIONS . PLEASURE TRADING PVT. LTD. (NOW MERGED WITH ALL GROW FINA NCE & INVESTMENTS PVT. LTD.) 2 4. THAT IN ANY CASE, THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING RS.10,58,700, BEING 50% OF BUSINESS PRO MOTION EXPENSES ON AN ADHOC BASIS . 3. BRIEF FACTS OF THE CASE ARE THAT LEARNED CIT(A) DISMISSED THE APPEAL FILED IN MANUAL FORM ON 4.4.2016 AS NOT MAINTA INABLE AS IT WAS FILED IN MANUAL IN MANUAL FORM. HE WAS OF THE OPINION THAT PURSUANT TO CBDT CIRCULAR NO. S0 637(E) DATED 1.3.2016, I T WAS INCUMBENT UPON THE ASSESSEE TO FILE THE APPEAL IN ELECTRONIC FORM. AGAINST THIS ORDER ASSESSEE HAS FILED APPEAL BEFORE THE ITAT. 4. LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE UPON THE DECISION OF THIS TRIBUNAL I N THE CASE OF ASHRAF AZIZ KASMANI VS. ITO (92 TAXMANN.COM 293), WHEREIN IT WAS HELD THAT FOR ASSESSMENT ORDER PASSED PRIOR TO 1.3.2016, MANUAL FORM OF APPEAL C OULD HAVE BEEN ENTERTAINED BY LEARNED CIT(A). 5. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIV E RELIED UPON THE ORDER OF LEARNED CIT(A). 6. UPON CAREFUL CONSIDERATION WE NOTE THAT THE ASSESSMENT ORDER WAS PASSED IN THIS CASE ON 29.2.2016 . T HIS DATE IS ADMITTEDLY PRIOR TO THE DATE OF CBDT CIRCULAR DATED 1.3.2016. O N IDENTICAL ISSUE THIS TRIBUNAL IN THE CASE OF ASHRAF AZIZ KASMANI (SUPRA) HAS HELD AS UNDER : - 11. UPON CAREFUL CONSIDERATION, I FIND THAT IN THE ABOVE CBDT CIRCULAR, ADMITTEDLY THERE IS NO DISCUSSION ABOUT THE DATE OF ASSESSMENT ORDER, WITH RESPECT TO WHICH THE SAID CIRCULAR IS APPLICA BLE. A CONSTRUCTION THAT THE SAID CIRCULAR IS NOT APPLICABLE TO ASSESSMENT ORDERS PASSED PRIOR TO 01.3.2016, CANNOT BE SAID TO BE TOTALLY UNSUSTAINABLE. THE HON'BLE APEX COURT IN THE CASE OF CIT V. VEGETA BLE PRODUCTS LTD . [1973] 88 ITR 192 (SC) HAS EXPOUNDED THAT IF TWO CONSTRUCTIONS ARE POSSIBLE, ONE IN FAVOUR OF THE ASSESSEE SHOULD BE APPLIED. ON THE FACTS OF THE PRESENT CASE, AND ON THE TOUCH STONE OF THEASHRAF AZIZ KASMANI ABOVE SAID HON'BLE APEX COUR T DECISION, I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE'S PLEA THAT THE APPEAL FILED MANUALLY FOR ASSESSMENT ORDER PASSED PRIOR TO 01.03.2016, SHOULD BE ADMITTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), IS COGENT. MORE SO, WHEN THE LD. COMMISS IONER OF INCOME TAX (APPEALS) IN HIS EARLIER PARAGRAPH HAS ACCEPTED THAT THE APPEAL IS WELL PLEASURE TRADING PVT. LTD. (NOW MERGED WITH ALL GROW FINA NCE & INVESTMENTS PVT. LTD.) 3 WITHIN TIME. ACCORDINGLY I DIRECT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO ADMIT THE AFORESAID APPEAL OF THE ASSESSEE AND PASS AN ORDER ON THE MERITS OF THE CASE. NEEDLESS TO ADD, THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 7. RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE WE SET ASIDE THE ISSUE RAISED IN THIS APPEAL TO THE FILE OF LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSID ER THE ISSUE ON MERITS AND PASS A SPEAKING ORDER AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 6 . 5 . 201 9 . SD/ - SD/ - (RAVISH SOOD ) (SH A MIM YAHYA ) J U DICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 6 / 5 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RE SPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI