ITO - 12(3)(3), MUMBAI V. M/S. MALAD INDUSTRIAL UNITS CO-OP. LTD., MUMBAI

ITA 6361/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6846 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMALD
• Keywords: Principle of natural justice; Additional evidence; TDS; Set aside
• Section: 139(1); 144

Judgement Text

1 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJEET SINGH , JM AND HON BLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 6361 /MUM/201 9 ( / ASSESSMENT YEAR : 2011 - 12 ) ITO 12(3)(3) ROOM NO. 224, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 / VS. M/S MALAD INDUSTRIAL UNITS CO - OPERATIVE LTD. GALA NO. A - 2, INDST. ESTATE, MALAD INDUSTRIAL UNIT CO - OPERATIVE SOCIETY LTD, KACHPADA RAMCHANDRA LANE EXTENSION, MALAD (W), MUMBAI - 400 064 ./ ./ PAN/GIR NO . A ADCM - 9473 - B ( / APPELLAN T ) : ( / RESPONDENT ) REVENUE BY : MS. SMITA VERMA, LD. DR ASSESSEE BY : NONE / DATE OF HEARING : 05 /07 /2021 / DATE OF PRONOUNCEMENT : 27/07/2021 / O R D E R AMARJI T SINGH ( JUDICIAL MEMBER) 1 . THE REVENUE HAS FILE D THE PRESENT APPEAL AGAINST THE ORDER OF LD. CIT(A) - 21, MUMBAI, DATED 28.06.2019 FOR THE ASSESSMENT YEAR 2011 - 12 . 2 2 . THE REVENUE HAS RASIED THE FOLLOWING GROUNDS OF APPEAL : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERR ED IN SETTING ASIDE THE ASSESSMENT ORDER WITH DIRECTIONS TO MAKE VERIFICATION WHICH IS NOT PERMISSIBLE BY LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDENCES FILED BY THE ASSESSEE W ITHOUT GIVING A REASONABLE OPPORTUNITY TO THE AO AND ACCORDINGLY IS IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX ACT 1961. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3 . AT THE OUTSET, IT IS NOTICED THAT NONE HAS APPEARED ON BEHALF OF ASSESSEE IN SPITE OF CALLS . ON THE OTHER HAND, LD. DR IS PRESENT AND IS READY WIT H ARGUMENTS. THEREFORE, WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE CASE EX - PARTE WITH THE ASSISTANCE OF THE LD. DR AND THE MATERIAL PLACED ON RECORD. 4 . THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A CORPORATE ENTITY REGISTERED UNDER THE COMPAN IES ACT, 1956. THE ASSESSEE WAS UNDER OBLIGATION TO FILE THE RETURN OF INCOME U/S 139(1) OF THE ACT, BUT ASSESSEE DID NOT FILE THE RETURN OF INCOME. ON PERUSAL OF AIR/NMS DATA, ASSESSEE RECEIVED THE INTEREST TO THE TUNE OF RS. 9,98,988/ - ON WHICH TDS U/S 9 4A WAS DEPOSITED. THE NOTICE WAS GIVEN AND AFTER REPLY OF THE ASSESSEE , T HE SAID INTEREST INCOME WAS ADDED TO THE INCOME OF 3 THE ASSESSEE AND THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 9,98,988/ - . 5 . FEELING AGGRIEVED, ASSESSEE FILED THE APP EAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE PARTLY ALLOWED THE CLAIM OF THE ASSESSEE. AGGRIEVED, BY THE SAID ORDER, T HE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US ON THE AFOREMENTIONED GROUNDS. 6 . GROUND NO. 1 TO 3 ARE INTER - RELATED AND INTER - CONNECTED, THEREFORE WE ADJUDICATE THESE GROUN DS ALTOGETHER . LD. DR APPEARING ON BEHALF OF THE REVENUE OBJECTE D TO THE FINDINGS OF LD. CIT(A). BEFORE GOING THROUGH THE APPEAL OF THE REVENUE, WE DEEM IT FIT TO PERUSE THE FIN DINGS OF LD. CIT(A ), WHICH ARE AS UNDER: - GROUND NO 1 AND 2 THE APPELLANT RAISED TWO GROUNDS OF APPEAL AND BOTH THE GROUNDS PERTAIN TO THE ASSESSMENT ORDER PASSED U/S 144 OF THE ACT AND ASSESSED INCOME DETERMINED BY THE AO, SINCE BOTH GROUNDS OF APPEAL ARE RELATED TO EACH OTHER, THE GROUNDS ARE ADJUDICATED TOGETHER AS UNDER. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT SUBMITTED THAT DESPITE BEING A REGISTERED CO - OPERATIVE SOCIETY UNDER CO - OPERATIVE SOCIETY ACT, IT WAS INITIALLY ALLOTTED PAN - AA DCM9473B (WHICH WAS PICKED UP FOR SCRUTINY UNDER CONSIDERATION) SINCE THE CONSULTANT WRONGLY MENTIONED THE NATURE OF ENTITY AS 'COMPANY' WHILE APPLYING FOR PAN. THE APPELLANT FURTHER STATED THAT ON REALIZING THE MISTAKE, IT RE - APPLIED FOR A FRESH PAN DURIN G FY 2014 - 15 AS AN AOP AND PAN - AADAM3119Q WAS ALLOTTED. IT IS SEEN THAT THE PRESENT APPEAL IS FILED UNDER THE NEW PAN - AADAM3119Q AND THE APPELLANT REQUESTED TO ACCEPT THE APPEAL UNDER SAID PAN ON THE GROUND THAT WHILE FILING APPEAL UNDER PAN - AADCM9473B ONL INE, THE PORTAL ASKED FOR CIN, NAME OF DIRECTOR AND DIN MANDATORILY AND THE 4 APPELLANT BEING A CO - OPERATIVE SOCIETY DOES NOT HAVE SUCH DETAILS. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS FILED BY THE APPELLA NT. THOUGH THE REASON CITED BY THE A PPELLANT LOOKS GENUINE, SINCE APPEAL IS RELATED TO A PARTICULAR PAN WHICH HAS BEEN PICKED UP FOR SCRUTINY AND THE AO HAS MADE THE ADDITIONS UNDER THE SAID PAN, THE CURRENT APPEAL FILED UNDER NEW PAN HAS BECOME NON - EST AND CANNOT BE ADMITTED. WITHO UT PREJUDICE TO THE ABOVE, THE APPEAL FILED UNDER NEW PAN CANNOT BE ADMITTED FOR THE REASON THAT THE APPELLANT HOLDS THE NEW PAN W.E.F F.Y. 2014 - 15 AND THE DISPUTED INCOME WAS ASSESSED FOR F.Y. 2010 - 11 AND THE INCOME ASSESSED UNDER A PAN CANNOT BE SHIFTED TO ANOTHER PAN AS PER THE PROVISIONS OF THE ACT. IN THE LIGHT OF THE PROBLEMS FACED BY THE APPELLANT, THE PRESENT APPEAL IS CONSIDERED TO HAVE BEEN FILED AGAINST THE OLD PAN - AADCM9473B WHICH WAS PICKED UP FOR SCRUTINY AND THE AO HAS ASSESSED. DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT WAS HOLDING ONE PAN WHICH WAS SELECTED FOR SCRUTINY AND SINCE THE APPELLANT WAS NOT ENTITLED TO HOLD THE SAID PAN DUE TO ITS NATURE OF BUSINESS, THE APPELLANT WAS SUPPOSED TO HAVE SURRENDERED THE SAID PAN AND APPLIED FOR A NEW ONE/WHEN THE APPELLANT USED THE PAN FOR VARIOUS TRANSACTIONS DURING THE YEAR AND OPENED THE BANK ACCOUNT BY SUBMITTING THE SAID PAN, IT IS LIABILITY OF THE APPELLANT TO FILE RETURN OF INCOME AS PER THE PROVISIONS OF THE ACT AND PAY DUE TAXES ON THE RETURN INCOME, IF ANY. HOWEVER, SINCE THE APPELLANT HELD A PAN ENTITLED FOR A COMPANY, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSMENT NEEDS TO BE DONE CONSIDERING THE NATURE OF BUSINESS OF THE ENTITY. IT IS APPARENT FROM RECORDS THAT THE APPELLANT WAS A CO - OPERATIVE SOCIETY REGISTERED UNDER CO - OPERATIVE SOCIETY ACT. ON THE REQUEST MADE BY THE APPELLANT SOCIETY, THE AO IS DIRECTED TO VERIFY THE BOOKS OF ACCOUNTS OF THE APPELLANT COMPANY AND MAKE REQUISITE ADJUSTMENT IN THE ASSESSED INCOME CONSIDERIN G THE APPELLANT AS A SOCIETY AS PER THE PROVISIONS OF THE ACT. THE GROUNDS OF APPEAL ARE ACCORDINGLY ALLOWED SUBJECT TO VERIFICATION. 7 . ON PERUSAL OF THE ABOVE, WE FIND THAT INITIALLY THE ASSESSMENT WAS REOPENED UNDER PAN - AADCM9473B. THE NAME OF THE COMPANY 5 WAS WRONGLY MENTIONED, THEREFORE ASSESSEE RE - APPLIED FOR FRESH PAN DURING FY 2014 - 15 AND PAN NO. PAN - AADAM3119Q WAS ALLOTTED. THE ASSESSEE FILED THE APPEAL BEFORE LD. CIT(A) UNDER THE NEW PAN - AADAM3119Q . THE CASE OF THE ASSESSEE WAS REOPENED UNDER OLD PAN NO. AADCM9473B. THE ASSESSEE IS IN FACT A CO - OPERATIVE SOCIETY AND THE MATTER OF CONTROVERSY HAS REMANDED TO THE AO TO VERIFY THE BOOKS OF ACCOUNT AND MAKE REQUISITE ADJUSTMENT IN THE ASSESSED INCOME CONSIDERING THE ASSESSEE AS A SOCIETY AS PER THE PROVIS IONS OF THE ACT. THE AMBIGUITY IN CONNECTION WITH PAN NUMBER HAS BEEN CLEARED. WE FIND NOTHING WRONG IN THE FINDINGS OF LD. CIT(A) IN QUESTION. WE ARE OF THE VIEW THAT LD. CIT(A) HAS DECIDED THE MATTER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO INTER FERE WITH AT THIS APPELLATE STAGE , THEREFORE THESE ISSUES ARE IN FAVOUR OF THE ASSESSEE WHICH IS NOT WRONG . ACCORDINGLY, WE AFFIRM THE FINDING OF THE CIT(A) ON ALL THE ISSUES. 8 . IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED . ORDER P RONOUNCED ON 27 TH JULY 2021 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) ( AMARJIT SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 27 /07 /2021 SR.PS, DHANANJ AY 6 / 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 FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.