CYNASURE INFRASUCTURE & BUILDERS P. LTD., MUMBAI V. ITO - 12(1)(4), MUMBAI

ITA 40/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3247 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) I.T.A. NO. 40/MUM/2021 (ASSESSMENT YEAR 2011-12) CYNASURE INFRASTRUCTURE & BUILDERS PRIVATE LIMITED B/105, SURYA CHS LTD. PAREKH NAGAR, VAISHETH PADA, MALAD, MUMBAI-97. PA N : AAECC0340C VS. ITO 12(1)(4) AAYAKAR BHAVAN M.K. ROAD MUMBAI-20. (APPELLANT) (RESPONDENT) ASSESSEE BY NONE DEPARTMENT BY MS. SMITA VERMA DATE OF HEARING 11.1 0 .2021 DATE OF PRONOUNCEMENT 12.10.2021 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 10.10.2019 PERTAINING TO ASSESSMENT YE AR (AY) 2011-12. 2. THE GROUNDS OF APPEAL READ AS UNDER : I. DISMISSAL OF APPEAL MERELY ON HYPER TECHNICAL GROUND:- 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD CIT(APPEAL) FAILED TO APPRECIATE THAT FORM 35 WAS DULY SIGNED BY THE DIRECTOR AS REQUIRED BY THE LAW AND FAILED TO APPLY ITS MIND TO THE FACTS OF THE EASE. 2. THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPEA L SUMMARILY ON TECHNICAL GROUND AND OUGHT TO HAVE HEARD THE MATTER ON ITS MERITS . 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT: A. FORM 35 WAS DULY SIGNED BY THE DIRECTOR. B. SECTION 140 REQUIRED THAT A DIRECTOR SIGN THE FORM 35 . II. NOT DECIDING ALL THE GROUNDS RAISED ON MERITS O F THE MATTER 1. THE LD. CIT (A) HAS ERRED IN DISMISSING THE APP EAL WITHOUT DECIDING ALL THE GROUNDS RAISED ON MERITS OF THE MATTER BY THE APPELLAN T. 2. THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPE AL SUMMARILY ON TECHNICAL GROUND AND OUGHT TO HAVE HEARD THE MATTER ON ITS MERITS . CYNASURE INFRASTRUCTURE & BUILDERS PRIVATE LIMITED 2 III. THE APPELLANT CRAVES LEAVE TO ADD AMEND, ALTER OR MODIFY THE GROUND OR GROUNDS OF APPEAL BEFORE THE HEARING. 3. BRIEF FACTS OF THIS CASE ARE THAT PURSUANT TO AS SESSMENT ORDER, THE ASSESSEES APPEAL WAS DISMISSED BY LEARNED CIT(A) O N THE GROUND THAT FORM 35 WAS NOT VERIFIED BY AUTHORISED PERSON AS UNDER :- THEREFORE, THE FORM NO. 35 WAS REQUIRED TO BE VERIF IED BY THE MANAGING DIRECTOR/DIRECTOR OF THE APPELLANT COMPANY. BUT IN TH IS CASE, THE FORM NO. 35 HAS NOT BEEN VERIFIED EITHER BY THE MANAGING DIRECTO R OR DIRECTOR. ACCORDINGLY, BY THIS OFFICE LETTER DATED 23.09.2019, ISSUED THROUGH ITBA, THE APPELLANT WAS ASKED TO SHOW CAUSE WHY THE APPEAL SHOU LD NOT BE TREATED AS DEFECTIVE AND, THEREFORE, DISMISSED. THE APPELLANT W AS REQUIRED TO SUBMIT ITS REPLY BY 27.09.2019. HOWEVER, TILL DATE NO REPLY HA S BEEN RECEIVED FROM THE APPELLANT. THEREFORE, IT IS PRESUMED THAT THE APPELLANT HAS NOTHING TO SAY IN THIS REGARD. 4. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE THE ITAT. I HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. FROM THE ABOVE ORDER LEARNED CIT(A) IS NOTED THAT LEARNED CIT(A) H AS GIVEN ONLY FOUR DAYS TIME TO THE ASSESSEE TO CURE THE DEFECT. MOREOVER, THE O RDER OF LEARNED CIT(A) IS SILENT AS TO WHO HAS ACTUALLY VERIFIED THIS FORM NO . 35. AS AGAINST THE ABOVE IT IS ASSESSEES PLEA THAT IT HAS ACTUALLY BEEN SIGNED BY THE DIRECTOR. IF THE FORM 35 HAS ACTUALLY BEEN SIGNED BY THE DIRECTOR OF THE COMPANY, LEARNED CIT(A) HAS ERRED IN SUMMARILY DISMISSING THE APPEAL WITHOUT AD JUDICATING UPON THE MERITS. HENCE, IN THE INTEREST OF JUSTICE I REMIT T HE ISSUE TO THE FILE OF LEARNED CIT(A) TO CONSIDER THE ISSUE AFRESH IN LIGHT OF OBS ERVATIONS HEREINABOVE. 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 12.10.2021. SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBE R MUMBAI; DATED : 12/10/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT CYNASURE INFRASTRUCTURE & BUILDERS PRIVATE LIMITED 3 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI