SHAKTI DEVELOPERS, NAVI MUMBAI V. DCIT CEN CIR 1, THANE

ITA 6658/MUM/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4523 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH, JM & SHRI M.BALAGANESH, AM ITA NO. 6658 / MUM/20 1 6 & 6659/MUM/2016 ( ASSESSMENT YEAR : 2011 - 12 ) M/S. SHAKTI DEVELOPERS SHOP NO.8, OPP. D - MART STORE, GHANSOLI, NAVI MUM BAI 400 701 VS. DCIT, CENTRAL CIRCLE 1 6 TH FLOOR, ROOM NO.10 A WING, ASHAR IT PARK ROAD NO.16Z, WAGLE INDUSTRIAL ESTATE, THANE 400 604 PAN/GIR NO. ABGFS8098H ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY MS. RITIKA AGARWAL REVENUE BY SHRI CHAUDHARY ARUNKUMAR SINGH DATE OF HEARING 06 / 03 /201 9 DATE OF PRONOUNCEMENT 22 / 03 /201 9 / O R D E R PER M. BALAGANESH (A.M) : ITA NO.6658/MUM/2016 THIS APPEAL IN ITA NO.6658/MUM/2016 FOR A.Y.2011 - 12 ARISES OUT OF THE ORDER OF LD. COMMISSI ONER OF INCOME TAX(APPEALS) - PUNE - 11 IN APPEAL NO.PN/CITA - 11/DCIT CEN.CIR 1, THANE/757/2014 - 15 (LD. CIT(A) IN SHORT) DATED 26/09/2016 AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) ITA NO S . 6658 & 6659/MUM/2016 M/S. SHAKTI DEVELOPERS 2 DATED 23/12/ 2013 BY THE LD. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, THANE (HEREINAFTER REFERRED TO AS ACT) ITA NO.6659/MUM/2016 THIS APPEAL IN ITA NO.6659/MUM/2016 FOR A.Y.2011 - 12 ARISES OUT OF THE ORDER OF LD. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCL E - 1, THANE LEVYING PENALTY U/S.271(1)(C) OF THE ACT VIDE ORDER DATED 16/06/2014 . 2. THE BRIEF FACTS OF THESE APPEALS ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS AND HAD ELECTRONICALLY FILED ITS RETURN OF INCOME FOR THE A.Y.2011 - 12 ON 21/09/2011 DECLARING TOTAL INCOME OF RS.45,95,870/ - . THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 23/12/2013 DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS.89,72,405/ - . THE ASSESSEE ON THE ADVICE OF ITS INCOME TAX P RACTITIONER HAD NOT PREFERRED ANY APPEAL BEFORE THE LD. CIT(A) AGAINST THIS QUANTUM ASSESSMENT ORDER. SINCE THE PENALTY PROCEEDINGS WERE INITIATED U/S.271(1)(C) OF THE ACT BY THE LD. AO IN THE ASSESSMENT ORDER ITSELF AND IN VIEW OF THE FACT THAT NO APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) ON THE QUANTUM ADDITIONS, THE LD. AO PROCEEDED TO LEVY PENALTY U/S.271(1)(C) OF THE ACT VIDE ORDER DATED 16/06/2014 BY LEVYING PENALTY OF RS.11,93,584/ - . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CI T(A) AGAINST THE SAID ORDER LEVYING PENALTY U/S.271(1)(C) OF THE ACT WITHIN THE PRESCRIBED TIME AS PER LAW . AT ITA NO S . 6658 & 6659/MUM/2016 M/S. SHAKTI DEVELOPERS 3 THAT POINT OF TIME, THE ASSESSEE REALISED THAT NO APPEAL WAS ORIGINALLY PREFERRED BEFORE THE LD. CIT(A) AGAINST THE QUANTUM ASSESSMENT ORDER FRAM ED U/S.143(3) DATED 23/12/2013. HENCE, ON THE ADVICE OF THE NEW COUNSEL, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE QUANTUM ASSESSMENT ORDER WITH CONSIDERABLE DELAY OF 173 DAYS. THE ASSESSEE ALSO FILED AN APPLICATION FOR CONDONATION OF DELAY BEFORE THE LD. CIT(A) EXPLAINING THE REASON THAT IT WAS ILL ADVISED BY ITS COUNSEL BY NOT SUGGESTING TO PREFER AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE QUANTUM ASSESSMENT ORDER IN TIME AND ALSO FILED AN AFFIDAVIT OF ITS EARLIER COUNSEL SHRI V. M. BHANUSHALI IN THAT REGARD. THE LD. CIT(A) OBSERVED THAT EVEN BEFORE HIM, THE HEARING FOR BOTH QUANTUM APPEAL AS WELL AS THE PENALTY APPEAL WERE FIXED ON SEVERAL OCCASIONS AND THERE WERE NO PROPER REASONS FROM THE ASSESSEE FOR THE SAME. OBSERVING THE CAS UAL ATTITUDE OF THE ASSESSEE TOWARDS THE STATUTORY HEARING NOTICE, THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE HIM AGAINST THE QUANTUM ASSESSMENT ORDER ALMOST AFTER A DELAY OF 173 DAYS PROCEEDED NOT TO CONDONE THE DELAY IN FILI NG OF THE APPEAL. ACCORDINGLY, HE DISMISSED THE APPEAL OF THE ASSESSEE AS INADMISSIBLE AND INVALID. 2.1. SINCE THE QUANTUM APPEAL HAS BEEN DISMISSED BY THE LD. CIT(A), THE PENALTY APPEAL ALSO WAS DISMISSED BY THE LD. CTIA(). 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE AFORESAID DISMISSAL ORDERS OF THE LD. CIT(A). ITA NO S . 6658 & 6659/MUM/2016 M/S. SHAKTI DEVELOPERS 4 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD. AR PLACED ON RECORD, THE AFFIDAVIT FROM SHRI VALAJI BHANUSHALI BEING THE COUNSEL WHO HAD REPRESENTED THE ASSESSEE BEFORE THE LD. A O IN THE ASSESSMENT PROCEEDINGS FOR A.Y.2011 - 12. THE SAID AFFIDAVIT SPECIFICALLY CON TAIN THE AFFIRMATION THAT THE SAID COUNSEL HAD ADVISED THE ASSESSEE THAT THERE IS NO NEED TO FILE ANY APPEAL IN RESPECT OF THE ADDITIONS MADE IN THE ASSESSMENT AND ALSO HAD INFORMED THE ASSESSEE THAT THE LD. AO WILL NOT LEVY ANY PENALTY. THIS AFFIRMATION GOES TO PROVE THAT ASSESSEE HAD GENUINELY BELIEVED ITS COUNSEL WHO HAD REPRESENTED BEFORE THE LD AO. IT ALSO GOES TO PROVE THAT ASSESSEE WAS INDEED ILL ADVISED BY HIS PREVI OUS COUNSEL BY NOT SUGGESTING TO PREFER AN APPEAL AGAINST THE QUANTUM ORDER BEFORE THE LD. CIT(A) IN TIME. HENCE, THIS BECOMES A CLEAR CASE OF ASSESSEE GETTING FASTENED WITH HUGE TAXES AND PENAL LIABILITY DUE TO THE MISTAKE COMMITTED BY THE INCOME TAX PRA CTITIONER AND WE ALSO FIND, SINCE QUANTUM WAS DISMISSED, THE PENALTY ALSO WAS CONFIRMED BY THE LD. CIT(A). IN THESE FACTS AND CIRCUMSTANCES, WE DEEM IT FIT AND APPROPRIATE TO REMAND BOTH THE APPEALS TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO CONDONE THE DELAY IN FILING THE QUANTUM APPEAL BEFORE HIM AND ADJUDICATE THE QUANTUM APPEAL AFRESH , IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISION TAKEN BY HIM IN THIS REGARD . THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ON 12/06/2019 AND C O - OPERATE WITH THE LD. CIT(A) FOR EXPEDITIOUS DISPOSAL OF THE APPEALS. THE ASSESSEE IS DIRECTED NOT TO TAKE ANY ADJOURNMENT BEFORE THE LD CIT(A) EXCEPT DUE TO ITA NO S . 6658 & 6659/MUM/2016 M/S. SHAKTI DEVELOPERS 5 UNAVOIDABLE OR EXCEPTIONAL CIRCUMSTANCES. THE LD. CIT(A) IS ALSO DIRECTED TO DISPOSE OFF THE AP PEALS ON OR BEFORE 30/09/2019. THE ASSESSEE IS GIVEN FULL OPPORTUNITY TO ADDUCE FRE SH EVIDENCES IN SUPPORT OF HIS CONTENTIONS. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO.6658/MUM/2016 ARE REMANDED TO THE FILE OF THE LD. CIT(A) AND ALLOWED F OR STATISTICAL PURPOSES. 4.1. SINCE THE PENALTY U/S.271(1)(C) IS LINKED TO THE QUANTUM ADDITION, WE DEEM IT FIT AND APPROPRIATE TO REMAND THIS APPEAL ALSO TO THE FILE OF THE LD. CIT(A) WHO SHALL DECIDE THE PENALTY APPEAL AFRESH IN ACCORDANCE WITH LAW AFTER DISPOSING OFF THE QUANTUM APPEAL AS DIRECTED HEREINABOVE, UNINFLUENCED BY EARLIER DECISION TAKEN BY THE LD. CIT(A) IN THIS REGARD. ACCORDINGLY, THE GROUNDS RAISED IN ITA NO.6619/MUM/2016 ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, BOTH THE APP EALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 / 03 /201 9 SD/ - ( MAHAVIR SINGH ) SD/ - ( M.BALAGANESH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 22 / 03 /201 9 KARUNA SR. PS ITA NO S . 6658 & 6659/MUM/2016 M/S. SHAKTI DEVELOPERS 6 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//