SHREE SAI BALAJI BUIDCON, MUMBAI V. INCOME TAX OFFICER, WARD- 29(3)(4), MUMBAI

ITA 62/MUM/2023

AI Insights

The case involves an appeal by Shree Sai Balaji Buildcon against the order of the CIT(A)-40, Mumbai, which was passed ex-parte. The CIT(A) had confirmed the addition made by the Assessing Officer regarding unexplained creditors amounting to Rs.2,73,20,000. The primary contention of the assessee was the violation of the principles of natural justice, as the notices for the hearing were sent to an old email address of the tax consultant, leading to the assessee's unawareness of the proceedings. The Tribunal noted the procedural lapse and the impact of the COVID-19 pandemic on the timing of the appeal, ultimately deciding to condone the delay and remand the case back to the CIT(A) for a fair hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299492 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-03-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 08-01-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G”BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM ANDSHRI OM PRAKASH KANT, AM आयकरअपीलसं/I.T.A. No.62/Mum/2023 (निर्धारणवर्ा/Assessment Year: 2013-14) Shri Sai Balaji Buildcon 402, Ratan Galaxy, J. N. Road, Mulund (W) Mumbai-400 080 बिधम Vs. Income Tax Officer, 29(3)(4) 418, 4 th Floor, Kautilya Bhavan, C-41 to C-43, G Bloc, Bandra Kurla Complex (E) Mumbai-400 051 स्थधयीलेखधसं/.जी. आइ. आर. सं/.PAN/GIR No: .ACAFS8657B अपीलार्थी /Appellant .. प्रत्यर्थी /Respondent सुनवाईकीतारीख/Date of Hearing: 08/03/2023 घोषणाकीतारीख/Date of Pronouncement: 10/04/2023 आदेश / O R D E R PER ABY T .VARKEY, JM: This is an appeal preferred by the assessee against the order of Ld. CIT(A)-40, Mumbai [hereinafter referred to as the “Ld. CIT(A)”] dated 26.11.2019 for assessment year 2013-14. 2. At the outset, it is noted that there is delay in filing of appeal before this Tribunal. The assessee has filed Condonation Application for the delay caused. It is noted that the Ld. CIT(A) has passed the order on 26.11.2019 and the assessee had to file the appeal before this Tribunal ordinarily on or before 25.01.2020, however, it has not filed the same; and explained that assessee was not aware of the passing of the impugned order, because it was served upon the email ID of the old tax consultant and not in the email ID which was reflected in the Form No. 35, wherein, the new tax consultant’s Email ID as reflected was Assessee by: None Revenue by: Shri Anil Kumar Das. Sr. AR. P a g e| 2 ITA No.62/MUM/2023 (A.Y.2013-14) SHREE SAI BALAJI BUILDCON [e-mail]; and therefore, the assessee was in the dark about the passing of impugned order as well as about the listing of the case before the Ld. CIT(A) for hearing. It is noted that even if the date of impugned order i.e. 26.11.2019 is taken as the date as service, the assessee ought to have filed the appeal before this Tribunal on 25.01.2020. It is noted that after two (2) months i.e. in March, 2020 Covid-19 pandemic struck India and lockdowns were imposed and thereafter, the Hon’ble Supreme Court suo-moto has passed the order extending the limitation period up to 28 th February, 2022, wherein, that order, the Hon’ble Supreme Court had given grace period of another three (3) months which resulted in extending the limitation period up to 28 th May, 2020. However, the assessee had filed the instant appeal before this Tribunal on 09.01.2023 meaning therein there was delay of 220 days in filing of the appeal before this Tribunal (excluding the period as ordered by the Hon’ble Supreme Court). Taking note of the fact that the impugned order was forwarded to old tax consultant’s Email ID and not to the Email ID stated in the Form No. 35 filed before the Ld. CIT(A), it can be persumed that assessee was not aware of the outcome of the First Appellate order dated 26.11.2019. Therefore, we are inclined to condone the delay of 220 days and admit the appeal of the assessee. 3. The main grievance of the assessee is against the action of Ld CIT(A) to have passed the impugned order without hearing the assessee and therefore, assessee assails the action of Ld CIT(A) to be bad in law for violation of Natural Justice. Brief facts are that the Ld. CIT(A) had fixed the appeal for hearing on 18.01.2018, 12.02.2018 and 15.11.2019 and thereafter, he noted that the assessee had earlier taken adjournment but did not bother to attend before him. Therefore, he has preceded ex-parte qua the assessee. It is noted that the Ld. CIT(A) has confirmed the addition made by the Assessing Officer (AO) on the ground that there was no supporting documents filed by the assessee to P a g e| 3 ITA No.62/MUM/2023 (A.Y.2013-14) SHREE SAI BALAJI BUILDCON prove the creditors to the tune of Rs.2,73,20,000/-. Therefore, he confirmed the action of the AO. It is noted that the main grievance of the assessee is that it did not get any notices of hearing from the Ld. CIT(A) since the notices were served on the wrong Email ID and not in the Email ID given in Form No. 35 filed before the Ld. CIT(A) i.e. [e-mail]. Therefore, since Assessee/Authorised Representative (AR)/(new tax consultant) was in the dark about the proceedings/listing of the case/appeal, he could not appear before the Ld. CIT(A). Per se it is noted that impugned order of Ld CIT(A) is an ex-parte order qua the assessee. Therefore, taking note of the facts noted supra, we are inclined to set aside the impugned order of the Ld. CIT(A) and restore the appeal back to the file of Ld. CIT(A) with directions to adjudicate the grounds of appeal raised by the assessee on merits. The assessee is at liberty to file documents to substantiate the identity, creditworthiness and genuineness of the creditors and if advised to do so file written submission. The Ld. CIT(A) to pass reasoned order after hearing the assessee as per section 250(6) of the Income Tax Act, 1961 and in accordance to law. 4. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on this 10/04/2023. Sd/- Sd/- (OM PRAKSH KANT) (ABY T. VERKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुंबई/Mumbai दिनांक/Dated : 10/04/2023 Mahesh R. Sonavan P a g e| 4 ITA No.62/MUM/2023 (A.Y.2013-14) SHREE SAI BALAJI BUILDCON आदेशकीप्रनिनलनिअग्रेनर्ि/Copy of the Order forwarded to : आदेशधिुसधर/ BY ORDER, सत्यादपतप्रदत //True Copy// उि/सहधयकिंजीकधर /(Dy./Asstt.Registrar) आयकरअिीलीयअनर्करण,मुंबई / ITAT, Mumbai 1. अपीलार्थी/ The Appellant 2. प्रत्यर्थी/ The Respondent. 4. आयकरआयुक्त/ CIT 5. दवभागीयप्रदतदनदि,आयकरअपीलीयअदिकरण,मुंबई/ DR, ITAT, Mumbai 6. गार्डफाईल / Guard file.