M/s. Spice Mobility Ltd., Noida V. ACIT (TDS), Noida

ITA 5945/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5050 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: misc
• Appeal Filed On: 21-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: MEENAL GOYAL
• Keywords: TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO.5945/DEL/2016 ASSESSMENT YEAR: 2010-11 M/S. SPICE MOBILITY LTD., 5, GLOBAL KNOWLEDGE PARK, 19A & 19B, SECTOR-125, NOIDA. VS. ASSTT. COMMISSIONER OF INCOME TAX (TDS), NOIDA. TAN/PAN: AABCM 5619D (APPELLANT) (RESPONDENT) I.T.A. NO.8186/DEL/2019 ASSESSMENT YEAR: 2014-15 DIGISPICE TECHNOLOGIES LTD. (FORMERLY SPICE MOBILITY LTD.), 19A & 19B, FLOOR NO. 5, GLOBAL KNOWLEDGE PARK, SECTOR-125, NOIDA. VS. ASSTT. COMMISSIONER OF INCOME TAX (TDS), NOIDA. TAN/PAN: AABCM 5619D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ADITYA VOHRA, ADV. & MS. MEENAL GOYAL, CA RESPONDENT BY: SHRI S.S. RANA, CIT-D.R. DATE OF HEARING: 04 11 2019 DATE OF PRONOUNCEMENT: 04 11 2019 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEALS HAVE BEEN FILED BY THE ASSESS EE AGAINST THE COMMON IMPUGNED ORDER DATED 15.09.2016, PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-I, N OIDA FOR I.T.AS. NO.5945/DEL/2016 & 8186/DEL/2019 2 THE ASSESSMENT YEARS 2013-14 AND 2014-15 IN RELATIO N TO THE ORDER PASSED U/S.201(1)/201(1A). 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE POIN TED OUT THAT APPEAL FOR THE ASSESSMENT YEAR 2014-15 IS BARR ED BY LIMITATION. HE SUBMITTED THAT THE LD. CIT (A) HAD P ASSED A CONSOLIDATED ORDER FOR THE ASSESSMENT YEARS 2013-14 AND 2014-15 AND APPEALS WERE DISMISSED EX PARTE IN A VERY CRYPTIC MANNER AND WITHOUT DECIDING THE APPEAL ON MERITS. T HE SAID APPELLATE ORDER WAS COMMUNICATED TO THE ASSESSEE ON 26.09.2016 AND THEREAFTER, ASSESSEE BY MISTAKE HAS FILED COMMON MEMORANDUM OF APPEAL WITHIN STATUTORY TIME O N 21.11.2016 IN RESPECT OF BOTH THE ASSESSMENT YEARS. EVEN THE GROUNDS OF APPEAL ANNEXED TO THE MEMORANDUM OF APPE AL WERE ALSO FILED IN A CONSOLIDATED MANNER. BETWEEN 2 1.11.2016 AND 21.06.2019 NO COMMUNICATION WAS RECEIVED FROM T HE REGISTRY OF THE TRIBUNAL ABOUT ANY SUCH DEFECT. IT WAS ONLY ON THE RECEIPT OF NOTICE OF FIRST LISTING OF THE APPEA LS AND THROUGH THE PAPERS PROVIDED BY THE ASSESSEE TO ITS LEGAL CO UNSEL; IT WAS THEN INFORMED THAT THE ACCOMPANYING APPEAL HAS NOT BEEN FILED IN CONFORMITY WITH THE ITAT RULES, 1962. ACCORDINGLY, THE ASSESSEE HAD TO FILE SEPARATE MEMO OF APPEAL FOR THE ASSESSMENT YEAR 2014-15 AND FOR THIS REASON THERE WAS A DELAY. THUS, THERE IS A SUFFICIENT AND REASON ABLE CAUSE; FIRSTLY, FOR THE REASON THAT NO PROFESSIONAL ADVICE WAS GIVEN TO THE ASSESSEE DURING THE FILING OF THE APPEAL; SECON DLY, NO DEFECT WAS POINTED OUT BY THE REGISTRY AT THE TIME OF FILING OF I.T.AS. NO.5945/DEL/2016 & 8186/DEL/2019 3 COMMON APPEAL FOR THE TWO ASSESSMENT YEARS; AND LAS TLY, THERE WAS NO MALA FIDE INTENTION ON THE PART OF THE ASSESSEE. 3. LD. DR ADMITTED THE ABOVE FACTS AS POINTED OUT B Y THE LD. COUNSEL. 4. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THAT ASSESSEE DID FILE THE APPEAL WITHIN STATU TORY TIME ALBEIT HAD FILED CONSOLIDATED APPEALS FOR THE ASSESSMENT YEARS 2013-14 AND 2014-15 AS THE ORDER OF THE LD. CIT(A) WAS COMMON/ CONSOLIDATED ORDER. THUS, THERE WAS REASONA BLE CAUSE AS POINTED OUT BY THE LD. COUNSEL FOR DELAY I N FILING OF APPEAL FOR THE ASSESSMENT YEARS 2014-15, HENCE THE DELAY IS HEREBY CONDONED. 5. ON THE MERITS, THE LD. COUNSEL SUBMITTED THAT LD . CIT (A) HAS DISMISSED THE APPEAL EX PARTE ON THE VERY FIRST DATE OF HEARING. ON THE DATE FIXED FOR HEARING, ASSESSEE HA D FILED A LETTER STATING BEFORE LD. CIT (A) THAT IT NEEDS CER TAIN TIME FOR PREPARING THE SUBMISSION. HOWEVER, THE LD. CIT (A) REJECTED THE PRAYER FOR ADJOURNMENT AND DISMISSED THE APPEAL EX PARTE WITHOUT GIVING ANY PROPER OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. HE FURTHER POINTED OUT THAT OTHERWISE THE ASSESSEES CASE IS SQUARELY COVERED BY THE DECISION OF THE TRI BUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011-12 ON THE SAME ISSUES INVOLVED AND ALSO DREW OUR ATTENTION TO THE ORDER OF THE TRIBUNAL. I.T.AS. NO.5945/DEL/2016 & 8186/DEL/2019 4 6. ON THE OTHER HAND, LD. DR SUBMITTED THAT SINCE T HE ORDER IN THE FIRST APPEAL HAS BEEN PASSED EX PARTE, THEREFORE, MATTER CAN BE RESTORED BACK TO THE FILE OF THE LD. CIT (A). 7. AFTER CONSIDERING THE IMPUGNED ORDER, WE FIND TH AT LD. CIT (A) IN PARAGRAPH 3 OF HIS ORDER HAS MENTIONED T HAT NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE AND IN RES PONSE TO SAME, THE ASSESSEE HAD FILED A LETTER ON 10.05.2016 STATING THAT IT WAS IN THE PROCESS OF PREPARING THE SUBMISS IONS, AND THEREFORE, THE CASE SHOULD BE ADJOURNED. HOWEVER, H E OBSERVED THAT THERE WAS NO DIRECTION ISSUED TO THE APPELLANT TO FURNISH ANY NEW OR ADDITIONAL INFORMATION, AND T HEREFORE, HE WILL NOT PERMIT TO MAKE ANY FURTHER SUBMISSION. BASED ON MEMO OF APPEAL, HE IS PROCEEDED TO DECIDE THE APPEA L. HOWEVER INSTEAD OF DECIDING THE ISSUES RAISED ON ME RITS, HE HAS JUST CONFIRMED THE ASSESSMENT ORDER. SUCH AN APP ROACH FOR DENIAL OF NATURAL AND SUBSTANTIAL JUSTICE BY THE LD. CIT (A) CANNOT BE UPHELD AND ACCORDINGLY THE ORDER OF THE L D. CIT (A) IS SET ASIDE. WE ARE REMITTING THE APPEAL BACK TO T HE FILE OF THE LD. CIT (A) TO DEAL AND DECIDE THE ISSUE AFRESH AFT ER CONSIDERING THE DECISION OF THE TRIBUNAL IN ASSESSE ES OWN CASE AND ALSO PROVIDE DUE AND SUFFICIENT OPPORTUNIT Y TO THE ASSESSEE TO REPRESENTS ITS CASE. THE ASSESSEE IS AL SO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS BEFORE THE LD. CIT (A) AND SHOULD FURNISH ALL THE NECESSARY DOCUMENTS AND THE DECISIONS WHICH IT SEEKS TO RELY UPON. ACCORDINGLY, THE APPEA L OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. I.T.AS. NO.5945/DEL/2016 & 8186/DEL/2019 5 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH NOVEMBER, 2019. SD/- SD/- [O.P. MEENA] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 4 TH NOVEMBER, 2019 PKK: