SHREE GANESH FORGINGS LTD, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE2 (3)(2), MUMBAI

ITA 5399/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4394 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 19-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Depreciation; Opportunity of being heard
• Section: 32; 143(3); 37(1); 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) SMC BENCH , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 5399 /MUM/201 9 (A.Y: 201 5 - 16) SHREE GANESH FORGINGS LIMITED 412, EMCA HOUSE, SBS ROAD FORT, MUMBAI - 400001 PAN: AAACS7821E V. ACIT CIRCLE 2(3)(2) ROOM NO. 552, AAYAKAR BHAVAN M.K. ROAD , MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATISH MODI DEPARTMENT BY : MS. SMITA VERMA DATE OF HEARING : 13.09.2021 DATE OF PRONOUNCEMENT : 13 .09.2021 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 6 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 28.01.2019 FOR THE A.Y. 2015 - 16 . 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. GROUND NO. 1 THE LEARNED CIT(A) ERRED IN UPHOLDING THE ORDER PASSED BY THE LEARNED AO UNDER SECTION 143(3) OF THE ACT, EVEN THOUGH IT IS 2 ITA NO.5399/MUM/2019 (A.Y: 2015 - 16) SHREE GANESH FORGINGS LIMITED CAPRICIOUS IN NATURE AND HAS BEEN MADE IGNORING THE ESTABLISHED AND UNDISPUTED FACTS. THE SAID ORDER IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE APPLICABLE PROVISIONS OF THE ACT AND IT MUST THUS BE DECLARED INVALID. GROUND NO.2 WITHOUT PREJUDICE TO GROUND NOS. 1 ABOVE, THE LEARNED CIT(A) ERRED, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE APPLICABLE PROVISIONS OF THE ACT, IN UPHOLDING THE DISALLOWANCE OF RS.35,54,115/ - UNDER THE PROVISIONS OF SECTION 37(1) OF THE ACT, SINCE THE SAME WAS PASSED IN VIOLATION OF THE PRINCIPLES OF NAT URAL JUSTICE AND IT MUST THUS BE DECLARED INVALID. GROUND N0.3 WITHOUT PREJUDICE TO GROUND NOS. 1 AND 2 ABOVE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF DEPRECIATION OF RS.3,54,20,630/ - , TO THE APPELLANT'S TOTAL INCOME, UNDER THE PROVISIONS OF SECTION 32 OF THE ACT AND THE SAME MUST BE DELETED BEING CONTRARY TO THE FACTS OF THE CASE AND THE APPLICABLE PROVISIONS OF THE ACT. YOUR APPELLANT IS A PRIVATE LIMITED COMPANY WHOSE MAIN SOURCE AND BUSINESS IS OF HOTEL INDUSTRY COMPRISING OF ROOM SALE S AND RESTAURANT SERVICES. GROUND N0.4 THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ISSU ANCE OF PENALTY NOTICE U/S 271(1 )(C) OF THE ACT PASSED BY THE LEARNED AO, AND THE SAME MUST BE QUASHED. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT LD.CIT(A) PASSED EXP ARTE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THEREFORE, CONSIDERING ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER LD. COUNSEL FOR THE ASSESSEE REQUESTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD.CIT(A ). 4. LD. DR HAS NO SERIOUS OBJECTION IN REMITTING THE MATTER BACK TO THE FILE OF THE LD.CIT(A). 3 ITA NO.5399/MUM/2019 (A.Y: 2015 - 16) SHREE GANESH FORGINGS LIMITED 5. HEARD BOTH SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE LD.CIT(A) ORDER, WE FIND THAT THE EVEN THOUGH THE LD.CIT(A) PROVIDED OPPORTUN ITY ON SEVERAL OCCASIONS ASSESSEE COULD NOT APPEAR. CONSIDERING THE TOTALITY OF F ACTS AND SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND KEEPING IN VIEW THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER, I AM OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. ASSESSEE IS DIRECTED TO APPEAR BEFORE LD.CIT(A) AND SHALL COOPERATE WITH THE APPELLATE PROCEEDINGS WITHOUT TAKING UNNECESSARY ADJOURNMENTS. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE VIRTUAL COURT ON 13.09.2021. SD/ - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 1 3 / 09/2021 GIRIDHAR , S R. PS 4 ITA NO.5399/MUM/2019 (A.Y: 2015 - 16) SHREE GANESH FORGINGS LIMITED COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM