DEGUSTIBUS HOSPITALITY P. LTD, MUMBAI V. DCIT 5(1), MUMBAI

ITA 523/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1431 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: SUNIL DESAI
• Keywords: Set aside
• Section: 154

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN, JM & HONBLE SHRI G. MANJUNATHA, AM ./ I.T.A. NO . 523 & 524 / MUM/201 7 ( / ASSESSMENT YEAR: 2010 - 11 & 2011 - 12 ) IN THE MATTER OF; DEGUSTIBUS HOSPITALITY PVT. LTD. 8 TH FLO OR, BAKHTWAR BLDG, NEAR SAHAKAR BHAVAN, NARIMAN POINT MUMBAI - 400021 . / VS. DCIT 5(1) AAYAKAR BHAVAN, MUMBAI - 400 020 ./ ./ PAN/GIR NO. A A BCD3674P / APPELLANT BY : SH. SUNIL DESAI, AR / RESPONDENTBY : SH. D. G. PANSARI, DR / DATE OF HEARING : 02/05 /201 9 / DATE OF PRONOUNCEMENT : 06.05.2019 / O R D E R PER SHRI SANDEEP GOSAIN, JUDICIAL MEMBER : THE PRESENT TWO A PPE AL S FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 10 , MUMBAI DATED 24.10.16 FOR AY 2010 - 11 & 2011 - 12 RESPECTIVELY . 2 ITA NO, 523 & 524/MUM/2017 DEGUSTIBUS HOSPITALITY PVT. LTD. 2. SINCE THE ISSUES INVOLVED IN THESE TWO APPEALS ARE COMMON, THEREFORE, THEY HAVE BEEN CLUBBED , HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 523/MUM/2017 (AY 20 10 - 11 ) 3. FIRST OF ALL WE TAKE UP A SSESSEES APPEAL IN ITA NO. 523/MUM/2017 FOR ASSESSMENT YEAR 2010 - 11 AS LEAD CASE . 4 . AT THE VERY OUTSET, IT WAS POINTED BY LD. AR THAT THE ASSESSEE HAS CHALLENGED THE ORDER PASSED BY LD. CIT(A) DECIDING THE APPEALS FILED AGAINST ORDER PASSED BY THE AO U/S 154 OF THE ACT DATED 19.11.14. I N THIS RESPECT, OUR ATTENTION WAS DRAWN TO WARDS FORM NO. 35 DATED 10.12.14, WHICH WAS FILED AT THE TIME OF FILING APPEAL BY THE ASSESSEE BEFORE LD. CIT(A) ALONGWITH THE GROUNDS OF APPEAL , WHEREIN GROUND NO. 1 , WAS SPECIFICALLY RAISED BY THE ASSESSEE THEREBY CHALLENGING THE INVO CATION OF PROVISIONS OF SECTION 154 O F THE I.T. ACT BY AO . 3 ITA NO, 523 & 524/MUM/2017 DEGUSTIBUS HOSPITALITY PVT. LTD. AS PER LD. AR, THE SAID GROUND HAD NOT BEEN ADJUDICATED BY LD. CIT(A) AT ALL WHILE PASSING THE IMPUGNED ORDER DATED 24.10.16. 5. LD. DR HAS ALSO NOT DISPUTED THE ABOVE FACTUAL POSITION. 6 . AFTER HAVING HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND ALSO ON PERUSAL OF THE DOCUMENTS AS WELL AS THE ORDERS PASSED BY LOWER AUTHORITIES , WE FIND THAT ALTHOUGH ASSESSEE HAD RAISED SPECIFIC GROUND THEREBY CHALLENGING THE INVOCATIONS OF PROVISIONS OF SECTION 154 OF THE ACT BY THE AO , BUT THAT GROUND HAD NOT BEEN ADJUDICATED BY LD. CIT(A) AT ALL AND THIS GROUND GOES TO THE ROOTS OF THE CASE AND IS THUS NECESSARY TO BE ADJUD ICATED BY LD. CIT(A). 7 . THEREFORE, KEEPING IN VIEW THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CI T(A) AND REMIT T HE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO PASS AFRESH ORDER ON THE GROUND SPECIFICALLY RAISED BY THE ASSESSEE CHALLENGING INVOCATION OF THE PROVISIONS OF SECTION 154 OF THE ACT BY AO . 4 ITA NO, 523 & 524/MUM/2017 DEGUSTIBUS HOSPITALITY PVT. LTD. IT IS NEEDLESS HERE TO MENTION THAT B EFORE PASSING AFRESH ORDER OF ASSESSMENT, THE LD. CIT(A) SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESS E E. 8 BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE T HE MATTER BACK TO THE FILE OF LD. 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(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. 9 . THE OTHER GROUND RAISED BY THE ASSESSEE IS NOT BEING ADJUDICATED FO R NOW AS THE OUTCOME OF GROUND NO. 1 WOULD HAVE DIRECT BEARING ON THIS GROUND. 10 . CONSEQUENTLY , THE APPEAL FILED BY THE ASSESSSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. 5 ITA NO, 523 & 524/MUM/2017 DEGUSTIBUS HOSPITALITY PVT. LTD. I.T.A. NO . 524 /MUM/201 7 (AY 2011 - 12) 11 . NOW WE TAKE UP ASSESSEE S APPEAL IN I.T.A. NO . 524 /MUM/201 7 (AY 2011 - 12). SINCE, WE HAVE ALREADY REMIT THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECIDING AFRESH ON THE GROUND RAISED BY THE ASSESSEE IN THE AFOREMENTI ONED APPEAL BEARING ITA NO. 523/MUM/2017 FOR AY 2010 - 11, THEREFORE, BASED ON OUR FINDINGS ON THE SIMILAR GROUND IN THE AFOREMENTIONED APPEAL, WE PARTLY ALLOW THE PRESENT APPEAL FOR STATISTICAL PURPOSES. 12 . IN THE NET RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE STANDS PARTLY AL LOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MAY 2019. SD/ - SD/ - (G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 06 . 05 .201 9 SR.PS . DHANANJAY 6 ITA NO, 523 & 524/MUM/2017 DEGUSTIBUS HOSPITALITY 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