AKSHAR SKYWARDS CONSTRUTION, MUMBAI V. ASST COMM OF INCOME TAX, CIRCLE-28(1), MUMBAI

ITA 438/MUM/2023

AI Insights

The case involves Akshar Skywards Construction, a partnership firm engaged in the business of builder/developer, which appealed against the order of the CIT (A)-51, Mumbai. The CIT (A) had dismissed the firm's appeal due to an inordinate delay of 177 days in filing the appeal against the assessment order which disallowed certain stamp duty and registration expenses claimed by the firm. The ITAT found sufficient cause to condone the delay, noting the firm's punctuality in responding to the department and the inadvertent misinterpretation of procedural law. The ITAT did not decide on the merits of the case but restored it to the CIT (A) for a detailed examination of the disallowed expenses.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123134 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 18-04-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 14-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 250; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “A”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 438/Mum/2023 (A.Y.2017-18) Akshar Skywards Construction, Office at O Wing, Ground Floor, Akshar Business Park, Plot No. 03, Sector-25, Vashi Navi Mumbai-400 703 PAN: AASFA3212A ...... Appellant Vs. ACIT Cir 28(1) R. No. 306, 3 rd floor, Tower No. 6, Vashi Railway Station Commercial Complex, Navi Mumbai-400703 ..... Respondent Appellant by : Ms. Shivani Shah Respondent by : Shri Manoj Kumar Sinha, Sr. AR Date of hearing : 19/04/2023 Date of pronouncement : 12/06/2023 2 ITA No. 438/Mum/2023 Akshar Skywards Construction ORDER PER GAGAN GOYAL, A.M: This appeal by assessee is directed against the order of Ld. CIT (A)-51, Mumbai dated 18.01.2023 u/s. 250 of the Income Tax Act, 1961 (in short ‘the Act’) for A.Y. 2017-18. The assessee has raised the following grounds of appeal:- 1. In the facts and circumstances of the case, the impugned order is illegal, invalid, void-ab-initio, contrary to law and facts on record and is bad in law and wholly without jurisdiction without application of mind and is in violation of principles of natural justice. 2. In the facts and circumstances of the case and in law the learned CIT(A) erred in dismissing appeal of the Assessee on the ground that there is inordinate delay of 177 days in filing of appeal. 3. In the facts and circumstances of the case Id. AO erred in facts and in law in disallowing the stamp duty and registration expenses Rs.2,23,100/- even though appellant firm has incurred the same in lieu of sale of flat to buyer. 4. In the facts and circumstances of the case Id. AO erred in law and on facts in making disallowance of stamp duty and registration expenses of Rs.4,70,000/- stating that the appellant firm failed to substantiate the claim of expenditure with appropriate evidence, even though the same is incurred to obtain loan from financial institution. 5. The appellant firm craves to leave, to add, alter, modify or delete any of the ground. 2. The brief facts of the case are that assessee is a partnership firm filed its return of income on 06-11-2017 declaring total income at Rs. 3 ITA No. 438/Mum/2023 Akshar Skywards Construction 2,04,58,367/-. The case was selected for scrutiny under CASS and notice u/s. 143(2) of the act was issued dated 10-08-2018. Assessee firm engaged in the business of builder/developer. During the assessment proceeding it was observed by AO that assessee firm paid stamp duty of Rs 2, 23,100/- on behalf of the buyer of the flat and assessee incurred Rs 15, 00,000/- towards stamp duty, registration charges on documents for procuring loan from State Bank of India but assessee is not able to substantiate Rs 4.7 lakhs by any evidence hence, disallowed as result of this total disallowance of Rs 6, 93,100/- was made. Assessee being aggrieved with this order of AO preferred an appeal before the Ld. CIT (A) with a delay of 177 days. The Ld. CIT (A) without going on the merits of the matter dismissed the appeal as the same was filed delayed and explanation of delay furnished by assessee is not satisfactory. Assessee being further aggrieved with this order of Ld. CIT (A) preferred this appeal before us. 3. We have gone through the order of AO, order of Ld. CIT (A) and submissions of the assessee along with the case laws relied upon. As a matter was dismissed by the Ld. CIT(A) without discussing the merits of the case as he found matter time barred and not explained satisfactorily hence, first of all we are adjudicating on the matter of condonation of delay based on the explanations submitted by the assessee and documents available on record. In this regard we have gone through the chronology of events as exhibited vide page-3 of the paper-book. In addition to this we are gone through exhibit-A vide page no-15 to 21 of the paper-book. It is found that disallowances made as mentioned (supra) can be explained and disallowance 4 ITA No. 438/Mum/2023 Akshar Skywards Construction can be reversed by filing an application u/s. 154. In this case, assessee received assessment order on 22-07-2019 and rectification request made on 21-07-2019 and again on 16-01-2020. Till date no order u/s. 154 is being passed by the AO. Because of this impression assessee missed the deadline of filing the appeal before the Ld. CIT (A). In this case dead line to file the appeal u/s. 246A was 21-08-2019. On 31-01-2020 AO passed penalty order u/s. 270A and then assessee filed an appeal before the Ld. CIT (A) on 14-02- 2020. This resulted in delay of 177 days. We have gone through various communications by assessee before AO during the assessment proceedings vide exhibit no. E-1 to E-11 which clearly demonstrates that the assessee is quite punctual and responding to the department and never missed any deadline for any compliance. This delay of 177 days also is inadvertent and misinterpretation of the procedural law. In that situation we find sufficient cause to condone this delay of 177 days. 4. On the technical grounds raised vide ground no. 1 and grounds on merits vide ground no 3 and 4 there is no finding by Ld. CIT (A) as he failed to understand the facts of the case and delay was not condoned by him. As in response to ground no. 2 raised by the assessee, we condoned the delay of 177 days we deem it fit to restore the matter back to the file of Ld. CIT (A) to decide the ground no. 1, 3 and 4 raised by the assessee after giving a proper opportunity of being heard and to consider the evidences and legal preposition’s to be advanced by the assessee in favour of its contentions. In the result appeal of the assessee is partly allowed for statistical purposes. 5 ITA No. 438/Mum/2023 Akshar Skywards Construction 8. In the result, appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 12 th day of June, 2023. Sd/- Sd/- (KULDIP SINGH) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, दिन ांक/Dated: 12/06/2023 Sr. PS (Dhananjay) Copy of the Order forwarded to: 1. अपील र्थी/The Appellant , 2. प्रदिव िी/ The Respondent. 3. आयकर आयुक्त(अ)/The CIT(A)- 4. आयकर आयुक्त CIT 5. दवभ गीय प्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 6. ग र्ड फ इल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar) ITAT, Mumbai