SREE MAHABAL INVESTMENTS (BOMBAY) PVT. LTD., MUMBAI V. ITO 15(3)(4), MUMBAI

ITA 6405/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 07-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR MENON
• Keywords: Set aside
• Section: 143(3); 40(a)(ia); 251

Judgement Text

1 ITA 6405/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) I.T.A. NO.6405/MUM/2019 (ASSESSMENT YEAR 2012-13) M/S SREE MAHABAL INVESTMENTS (BOMBAY) PVT LTD, 15, HEMKUNJ, V.P. ROAD, MUMBAI-400 080 PAN : AABCS6155J VS INCOME-TAX OFFICER-15(3)(4) MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI ADITYA RAMACHANDRAN, (AR) RESPONDENT BY SHRI VIJAY KUMAR MENON (DR) DATE OF HEARING 29-06-2021 DATE OF PRONOUNCEMENT 29-07-2021 O R D E R PER : SAKTIJIT DEY (JM): THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DA TED 14-06-2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-24, MUMBAI FOR THE ASSESSMENT YEAR 2012-13. 2. IN GROUND 1, ASSESSEE HAS CHALLENGED THE EX PART E DISPOSAL OF THE APPEAL BY LEARNED FIRST APPELLATE AUTHORITY. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE, A RESIDENT COMPANY, IS STATED TO BE ENGAGED IN SHARE TRADING. FOR THE ASSESSMENT YEAR U NDER DISPUTE, ASSESSEE FILED ITS RETURN OF INCOME ON 27-08-2013 DECLARING NIL IN COME. ASSESSMENT IN CASE OF 2 ITA 6405/MUM/2019 THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) R.W .S.147 OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 28-12-2017, DETERMINING THE TOTAL INCOME AT RS.3,26,340/- AFTER DISALLOWING AN AMOUNT OF RS.10, 88,883/- UNDER SECTION 40(A)(IA) OF THE ACT. AGAINST THE ASSESSMENT ORDER SO PASSED, ASSESSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). HOWEV ER, BY THE IMPUGNED ORDER, LEARNED COMMISSIONER (APPEALS) HAS DISMISSED ASSESS EES APPEAL. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. IT IS VERY MUCH CLEAR FROM THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) THAT NOT ONLY HE HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE, BUT HE HAS DISMISSED THE APPEAL SIMPLY FOR THE REASON OF NON PROSECUTION WITHOUT DECIDING THE ISSUES ON MERIT. ON A CAREFUL READING OF SECTION 251 OF TH E ACT, WE ARE OF THE VIEW THAT LEARNED COMMISSIONER (APPEALS) HAS TO DECIDE THE AP PEAL ON MERITS. HE CANNOT DISMISS THE APPEAL IN LIMINE MERELY FOR THE REASON OF NON APPEARANCE/NON PROSECUTION. THEREFORE, THE IMPUGNED ORDER OF LEARN ED COMMISSIONER (APPEALS) IS UNSUSTAINABLE. ACCORDINGLY, WE SET ASIDE THE IMPUGN ED ORDER OF LEARNED COMMISSIONER (APPEALS) WITH A DIRECTION TO DECIDE T HE APPEAL AFRESH, ON MERITS, THROUGH A SPEAKING ORDER AFTER DUE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29/07/2021. SD/- SD/- RAJESH KUMAR SAKTIJIT DEY ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 29/07/2021 PAVANAN 3 ITA 6405/MUM/2019 COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI