MOURYA ISPAT PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 15(2)(3), MUMBAI

ITA 5226/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0148 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 10-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H N SINGH
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 143(3); 68; 144

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 5226/MUM/2017 ( / ASSESSMENT YEAR: 2012 - 13 ) MOURYA ISPAT PVT. LTD. 120, SHIV CENTRE, PLOT NO. 72, SECT - 17, VASHI NAVI MUMBAI - 400 614 / VS. ITO - 15(2)(3 ), 360, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. A ACCM2910N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI AKASH KUMAR, AR / RESPONDENTBY : SHRI H. N. SINGH, DR / DATE OF HEARING : 07/03 /201 8 / DATE OF PRONOUNCEMENT : 09/03/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT A PPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. COMMISSI ONER OF INCOME TAX (APPEAL) 2 4 , MUMBAI DATED 09.03.17 F OR AY 2012 - 13. 2 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. 2 . LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR AT TENTION TO LETTER DATED 10 TH AUG, 2017 WHICH RELATES TO CONDONATION OF DELAY IN FILING APPEAL BEFORE HONBLE ITAT. LD. AR SUBMITTED THAT THE PRESENT APPEAL COULD NOT BE FILED WITHIN TIME BECAUSE THE DIRECTOR WAS UNDER A MISCONCEPTION THAT APPEAL TO THE TRIBUNAL IS TO BE FILED WITHIN 120 DAYS OF RECEIPT OF THE O RDER OF LD. CIT(A) AND DUE TO WHICH, THERE WAS A DELAY OF 67 DAYS IN FILING THE PRESENT APPEAL. 3. ON THE OTHER HAND, LD. DR REQUESTED FOR DISMISSAL OF THE SAID APPLICATION. 4 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS APPLICATION FOR SEEKIN G CONDONATION OF DELAY AND WHILE TAKING INTO CONSIDERATION THE CONTENTS OF APPLICATION FILED BY THE ASSESSEE AND FOLLOWING THE PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT IN CASE OF LAND ACQUISITION COLLECTOR VRS. MSTKITZI, AIR 1987 S.C. 1353 /(1987) 167 ITR 471 (SC), WE CONDONE THE DELAY OF 67 DAYS IN FILING THE APPEAL. RESULTANTLY, THIS APPLICATION IS ALLOWED AND APPEAL IS ADMITTED TO BE HEARD ON MERITS. 3 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. 5 . NOW COMING TO THE MERITS OF APPEAL, AS PER THE FACTS OF THE CASE, THE ASSESSEE IS A PVT. LTD. COMPANY AND ENGAGED I N THE BUSINESS OF MANUFACTURING OF IRON 7 STEEL. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 17.11.12 DECLARING TOTAL INCOME AT NIL. LATER ON THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES , ORDER OF ASSESSMENT U/S 143(3) WAS PASSED BY AO THEREBY TREATED INCOME A S UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T. ACT. 6 . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PRE FERRED APPEAL BEFORE LD. CIT(A). SINCE ASSESSEE DID NOT APPEAR BEFORE LD. CIT(A) EVEN IN SPITE OF SERVICE OF NOTICE, THEREFORE LD. CIT(A) AF TER CONSIDERING THE CASE OF THE PARTIES DISMISSED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL. 7 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENT ION TO THE EX - PARTE ORDER PASSED BY L D. CIT(A) AND ASSESSMENT ORDER PASSED BY AO U/S 144 OF THE I.T. ACT. IN THIS RESPECT, LD. AR SUBMITTED THAT ASSESSEE HAD MOVED 4 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. AN APPLICATION BEFORE LD. CIT(A) ON 07.03.17 FOR SEEKING ADJOURNMEN T, BUT THE SAME WAS DISMISSED BY LD. CIT(A) AND THE APPEAL WAS DECIDED EX - PARTE IN ABSENCE OF ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT NON - APPEARANCE ON THE PART OF ASSESSEE WAS UNINTENTIONAL AND THE ASSESSEE HAS GOOD CASE OF MERITS, THEREFORE REQUESTED THAT THE ORDER OF LD. CIT(A) MAY BE SET ASIDE AND DIR ECTED TO HEAR THE APPEAL AFRESH BY GOING INTO THE MERITS OF THE CASE . 8 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAD INTENTIONALLY NOT APPEARED BEFORE LD. CIT(A) AND THE ORDERS PASSED BY LD. CIT(A) NEEDS NO INTERFERENCE . 9 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES . W E FIND THAT LD. CIT(A) HAD CATEGORICALLY MENTIONED IN ITS ORDER THAT SEVERAL OPPORTUNITY OF HEARING WERE OFF ERED TO THE ASSESSEE BUT PROPER COMPLIANCE HAS NOT BEEN COMMITTED BY THE ASSESSEE, WHICH SHOWS THAT THE 5 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. ASSESSEE HAD NO INTEREST TO PURSUE OR PROSECUTE THE APPEAL . WHEREAS ON THE CONTRARY, LD. AR SUBMITTED THAT ASSESSEE WAS VERY MUCH INTEREST TO PURSUE OR PROSECUTE THE APPEAL BUT LD. CIT(A) WITHOUT APPRECIATING THE LETTER OF ADJOURNMENT DATED 07.03.17 , DISMISSED THE APP EAL BY DECIDING EX - PARTE. BE THAT AS IT MAY, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE , WE ARE OF THE CONSIDERED VIEW THAT THE ENDS OF JUSTICE WOULD BE MET ONLY WHEN WE PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE FOR CONTESTI NG THE APPEAL ON MERITS . IN OUR VIEW, IF THE ASSESSEE IS ALLOWED TO REPRESENT HIS CASE BEFORE LD. CIT(A) THEN , NO PREJUDICE WOULD BE CAUSED TO THE INTEREST OF REVENUE AS LEGITIMATE TAXES DUE ON THE ASSESSEES CORRECT INCOME WILL BE ADJUDICATED . WHEREAS, IF THE CONTRARY VIEW IS TAKEN THEN IN THAT EVENTUALITY THE ASSESSEE MAY BE PUT TO GREAT HARDSHIP AND DIFFICULTY. THEREFORE, KEEPING IN VIEW THE ABOVE DISCUSSION, WE SET ASIDE THE EX - PARTE ORDER PASSED BY LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF LD. CIT (A) FOR FRESH DECISION. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER, THE LD. CIT(A) SHALL PROVIDE OPPORTUNITY TO THE ASSESSEE 6 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. AND THE ASSESSEE SHALL NOT TAKE ADJOURNMENT WITHOUT A VALID REASON. IT IS ALSO MADE CLEAR THAT ASSESSEE S HALL EXTEND ALL NECESSARY COOPERATION TO THE LD. CIT(A) I N EXPEDITIOUS DISPOSAL OF THIS MATTER . BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF L D CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE LD. CIT INDEPENDENTLY IN ACCORDANCE WITH LAW. RESULTANTLY THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE NET RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH MARCH, 2018. SD/ - SD/ - ( G. S. PANNU) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 09 . 03 .201 7 SR.PS . DHANANJAY 7 I.T.A. NO. 5226 /MUM/201 7 MOURYA ISPAT PVT. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI