VIPUL N. DOSHI, MUMBAI V. INCOME TAX OFFICER-24(2)(3), MUMBAI

ITA 6011/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9850 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Keywords: Revision of order
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 6011 /MUM/201 7 : (A.Y : 20 08 - 09 ) VIPUL N. DOSHI PROP. M/S. PARTH OVERSEAS, 107, SONAL INDUSTRIAL ESTATE, LINKING ROAD, MALAD (WEST), MUMBAI 400 064. (APPELLANT) PAN : AAGPD0820K VS. ITO - 24(2)(3), MUMBAI (RESPONDENT) APPELLANT BY : SHRI SHEKHAR GUPTA RESPONDENT S BY : MS. S. PADMAJA DATE OF HEARING : 0 1 / 0 1 /201 8 DATE OF PRONOUNCEMENT : 23 /0 3 /201 8 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF I NCOME T AX - 24 , MUMBAI (IN SHORT THE COMMISSIONER) U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 2 6 . 11 .201 2 PERTAINING TO ASSESSMENT YEAR 200 8 - 0 9 WHEREBY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT DATED 29 . 1 0 .201 0 HAS BEEN HELD TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SEC. 263 OF THE ACT. 2 ITA NO. 6011/MUM/2017 VIPUL N. DOSHI 2. BY WAY OF THE IMPUGNED ORDER, THE COMMISSIONER HAS TREATED THE ASSESSMENT ORDER TO BE ERRONEOUS INSOFAR AS IT IS PREJU DICIAL TO THE INTERESTS OF THE REVENUE ON TWO ASPECTS, NAMELY, DISALLOWING INTEREST U/S 36(1)( III ) OF THE ACT AND DISALLOWANCE OF FREIGHT/OCTROI AND EXCISE CHARGES OF RS. 17,28,789/ - AND BUSINESS PROMOTION EXPENSES OF RS.5,51,621/ - U/S 40(A)(IA) OF THE ACT FOR NON - DEDUCTION OF TAX AT SOURCE. 3. IT WAS NOTED AT THE OUTSET THAT THE APPEAL PREFERRED BY THE ASSESSEE IS DELAYED BY 1701 DAYS. THE PECULIAR FACTS LEADING TO THE BELATED FILING OF THE CAPTIONED APPEAL HAS BEEN EXPLAINED BY THE LEARNED REPRESENTATIVE BY WAY OF AN AFFIDAVIT DATED 22.09.2017, WHICH IS ON RECORD. IT TRANSPIRES THAT SUBSEQUENT TO THE IMPUGNED ORDER OF THE COMMISSIONER DATED 26.11.2012, ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER WHEREBY, INTER - ALIA , DISALLOWANCE OF RS.17,28,789/ - O UT OF FREIGHT/OCTROI AND EXCISE CHARGES AND RS.5,51,621/ - OUT OF BUSINESS PROMOTION EXPENSES MADE BY THE ASSESSING OFFICER WERE CARRIED IN APPEAL BEFORE THE CIT(A) . 4. THE LEARNED REPRESENTATIVE EXPLAINED THAT ASSESSEE HAD FILED AN APPEAL BEFORE THE TRIB UNAL AGAINST THE IMPUGNED ORDER OF THE COMMISSIONER WITHIN THE PERIOD PRESCRIBED, WHICH CAME UP FOR HEARING ON 30.06.2014. THAT APPEAL WAS WITHDRAWN BY THE ASSESSEE ON THE BELIEF THAT CHALLENGE TO THE ADDITIONS COULD ALSO BE MADE WHEN THE ASSESSING OFFICE R WAS TO PASS THE ORDER IN CONSONANCE TO THE ORDER OF THE COMMISSIONER U/S 143(3) R.W.S. 263 OF THE ACT. ACCORDINGLY, THE TRIBUNAL DISMISSED THE APPEAL AS WITHDRAWN. IT IS EXPLAINED THAT ASSESSEES APPEAL AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED U/S 143(3) R.W.S. 263 OF THE ACT WAS TAKEN - UP BY THE CIT(A) AND VIDE ORDER DATED 21.10.2016, IT WAS DISMISSED WITHOUT GOING INTO THE MERITS OF 3 ITA NO. 6011/MUM/2017 VIPUL N. DOSHI THE ADDITIONS ON THE GROUND THAT THE ASSESSING OFFICER WAS MANDATED ONLY TO APPLY THE FINDINGS OF THE COMMISSION ER U/S 263 OF THE ACT. THE LEARNED REPRESENTATIVE EXPLAINED THAT THE MANNER IN WHICH THE CIT(A) DISPOSED OFF ASSESSEES APPEAL, IT BECAME NECESSARY FOR THE ASSESSEE TO CHALLENGE THE ORDER PASSED BY THE COMMISSIONER U/S 263 OF THE ACT AND, THEREFORE, ASSES SEE FILED THE CAPTIONED APPEAL ON 26.09.2017 AND THE SAME IS BELATED. 5. DWELLING FURTHER, THE LEARNED REPRESENTATIVE POINTED OUT THAT SUBSEQUENT TO THE FILING OF THE CAPTIONED APPEAL, THE TRIBUNAL TOOK - UP THE APPEAL OF THE ASSESSEE FILED AGAINST THE ORDE R PASSED BY THE CIT(A) DATED 21. 10.2016 IN ITA NO. 227/MUM/2017 AND VIDE ORDER DATED 12.10.2017 , T HE TRIBUNAL SET - ASIDE THE ORDER OF THE CIT(A) DISAPPROVING THE MANNER IN WHICH THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A). BY REFERRING TO THE OR DER OF THE TRIBUNAL DATED 12.10.2017 (SUPRA), THE LEARNED REPRESENTATIVE POINTED OUT THAT THE CIT(A) HAS BEEN DIRECTED TO GIVE A DETAILED ORDER ON THE FACTS AND PROVISIONS OF LAW INVOLVED. IN THIS BACKGROUND, THE LEARNED REPRESENTATIVE POINTED OUT THAT THE ONLY INTENTION OF THE ASSESSEE IS THAT HE SHOULD BE HEARD ON THE MERITS OF THE ADDITIONS AND IF CIT(A) WAS TO DO SO, THE PRESENT APPEAL BY THE ASSESSEE WOULD BE RENDERED INFRUCTUOUS. 6 . ON THE OTHER HAND, THE LD. DR APPEARING FOR THE REVENUE HAS NOT CONTROVERTED ANY OF THE FACTUAL MATRIX BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. THE ENTIRE GAMUT OF FACTS AND EVEN TS LEADING TO FILING OF THE CAPTIONED APPEAL SHOW THAT THE UNDERLYING URGE OF THE ASSESSEE IS TO BE HEARD WITH REGARD TO THE MERITS OF 4 ITA NO. 6011/MUM/2017 VIPUL N. DOSHI THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OUT OF FREIGHT/OCTROI AND EXCISE CHARGES AND BUSINESS PROMOTION EXPENSES. THAT ASPECT HAS BEEN ALREADY BEEN DEALT BY OUR CO - ORDINATE BENCH VIDE ORDER DATED 12.10.2017 (SUPRA), AND THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE CIT(A) FOR PASSING A SPEAKING ORDER AFRESH ON FACTS AND ON LAW INVOLVED. THEREFORE, IN THIS BAC KGROUND, WE FIND ENOUGH SUPPORT IN THE PLEA OF THE ASSESSEE THAT FILING OF THE PRESENT APPEAL IS OBVIATED. THEREFORE, WITHOUT GOING INTO ANY OF THE ISSUES RAISED OR EVEN THE MAINTAINABILITY OF THE CAPTIONED APPEAL , IT IS DISMISSED AS INFRUCTUOUS. 8. RESU LTANTLY, APPEAL OF ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 2 3 R D MARCH , 2018. SD/ - SD/ - (SANDEEP GOSAIN) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 2 3 R D MARCH , 2018 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, F BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI