M/S.VENKATESHWARA DWELLERS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER-15(3)(2), MUMBAI

ITA 6663/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8529 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARI ARUNKUMAR SINGH
• Keywords: Principle of natural justice; Application of stay; Additional evidence; Set aside
• Section: 68; 143(3); 48; 20

Judgement Text

1 ITA 6663/MUM/2018 SA 569/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) ITA NO 6663/MUM/2018 (ASSESSMENT YEAR 2015-16) M/S VENKATESHWARA DWELLERS PVT LTD, 2/7, DIVYA SIVANGAN, NARDAS NAGAR, TEMBIPADA, BHANDUP (W), MUMBAI-400 078 PAN : AAECV0171E VS ITO 15(3)(2), MUMBAI APPELLANT RESPONDEDNT AND S.A.569/MUM/2018 (ARISING OUT OF ITA NO 6663/MUM/2018) (ASSESSMENT YEAR 2015-16) M/S VENKATESHWARA DWELLERS PVT LTD, 2/7, DIVYA SIVANGAN, NARDAS NAGAR, TEMBIPADA, BHANDUP (W), MUMBAI-400 078 PAN : AAECV0171E VS ITO 15(3)(2), MUMBAI APPLICANT RESPONDEDNT APPELLANT / APPLICANT BY SHRI PRAKASH JOTHWANI RESPONDENT BY SHRI CHAUDHARI ARUNKUMAR SINGH DATE OF HEARING 21-12-2018 DATE OF PRONOUNCEMENT 31-12-2018 2 ITA 6663/MUM/2018 SA 569/MUM/2018 O R D E R PER G MANJUNATHA, AM : THE ASSESSEE HAS FILED THIS STAY APPLICATION WHICH IS ARISING OUT OF ITA NO.6663/MUM/2018. WE, HOWEVER, FOUND THAT THE APPE AL ITSELF COULD BE DECIDED, THEREFORE, WE PROCEED TO DISPOSE OF THE AP PEAL HEREINBELOW. 2. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-24, MUMBAI DATED 28-09-2018 AND IT PERTAINS TO ASSESSMENT YEAR 2015- 16. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW: 1) THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEA L FILED THE APPELLANT BY PASSING AN EX-PARTE APPELLATE ORDER THEREBY CONFIRM ING THE ADDITIONS MADE BY THE LD. AO IN RESPECT OF ADVANCE RECEIVED FOR FLAT ALLOTMENT AMOUNTING TO RS. 2,12,00,000/- IN SRA PROJECT U/S. 68 OF THE INCOME TAX ACT, 1961. THE SAME SHALL BE DELETED IN FULL. 2) THE LD. CIT(A) ERRED IN MENTIONING IN THE ASSESS MENT ORDER THAT NO COMPLIANCE WAS MADE HOWEVER, THE APPELLANT HAD REPL IED TO EACH AND EVERY NOTICE DURING THE APPELLATE PROCEEDINGS. THE LD. CI T(A) HAS NOT CONSIDERED THE SUBMISSION MADE BY THE APPELLANT ON 29 TH AUGUST, 2018 AND PASSED EX- PARTE ORDER WITHOUT CONSIDERING THE MERITS OF THE C ASE AND NOT DECIDING THE APPEAL ON MERITS. 3) THE LD. CIT(A) OUGHT TO HAVE GIVEN AN OPPORTUNIT Y OF BEING HEARD BEFORE PASSING THE APPELLATE ORDER EX-PARTE AND HENCE THE ORDER PASSED BY THE LD. CIT(A) IS AGAINST PRINCIPLES OF NATURAL JUSTICE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION ACTIVITIES, REAL ESTAT E, CIVIL AND STRUCTURAL CONSTRUCTIONS, FILED ITS RETURN OF INCOME FOR AY 20 15-16 ON 29-09-2015 DECLARING TOTAL LOSS AT RS.1,57,612. THE CASE HAS BEEN SELECTED FOR SCRUTINY AND THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) OF THE ACT, ON 27-12-2017 3 ITA 6663/MUM/2018 SA 569/MUM/2018 DETERMINING TOTAL INCOME AT RS.2,10,42,390 BY MAKIN G ADDITION TOWARDS LOANS AND ADVANCES OF RS.212 LAKHS U/S 68 OF THE I.T. ACT , 1961. 4. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS TA KEN ADJOURNMENT ON THREE OCCASIONS. HOWEVER, WHEN THE CASE WAS POSTED FOR H EARING ON 28-02-2018, THE ASSESSEE NEITHER APPEARED NOR FILED ANY ADJOURNMENT APPLICATION. THE CASE WAS AGAIN POSTED ON 27-09-2018. THE SAME IS THE ST ORY; THE ASSESSEE NEITHER APPEARED NOR FILED ANY DETAILS. THEREFORE, THE LD. CIT(A) DISMISSED APPEAL FILED BY THE ASSESSEE EXPARTE FOR NON PROSECUTION BY FOLL OWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN CASE OF BHARAT PETROLE UM CORPORATION LTD 359 ITD 371 AND HONBLE DELHI HIGH COURT IN THE CASE OF MULTIPLAN INDIA PVT LTD 48 ITD 320 (BOM). AGGRIEVED BY THE ORDER OF LD.CIT(A) , THE ASASESSEE FILED APPEAL BEFORE THE TRIBUNAL. 5. WHEN THE STAY APPLICATION WAS CALLED UP FOR HEAR ING, THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS PASSED EX PARTE ORDER FOR NON PROSECUTION OF APPEAL WITHOUT DISCUSSING ISSUES ON MERITS. THE LD.AR REFERRING TO HIS ADJOURNMENT LETTER DATED 29-08-2018 FILED BE FORE THE LD.CIT(A) SUBMITTED THAT ASSESSEE HAS FILED VOLUMINOUS PAPER BOOK ALONGWITH AFFIDAVIT FOR ADMITTING ADDITIONAL EVIDENCE AND ALSO TO FORWA RD THE SAME TO THE AO FOR HIS COMMENTS. THE LD.CIT(A), WITHOUT CALLING FOR R EMAND REPORT FROM THE AO 4 ITA 6663/MUM/2018 SA 569/MUM/2018 DISMISSED APPEAL FILED BY THE ASSESSEE EXPARTE. TH EREFORE, THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE ISSUE DENOVO. THE LD.DR, ON THE OTHER HAND, FAIRLY ACCEPTED THAT THE ISSUE MAY BE S ET ASIDE TO THE FILE OF THE AO. 6. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED MA TERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD.CIT(A) HAS DISMISSED A PPEAL OF THE ASSESSEE BY FOLLOWING DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD (SUPRA), WHEN ASSESSEE DI D NOT APPEAR FOR HEARING ON THE DATES FIXED WITHOUT DISCUSSING THE ISSUES ON MERITS. WE FURTHER NOTICE THAT THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE ALO NGWITH AFFIDAVIT TO JUSTIFY ITS CASE BUT THE LD.CIT(A) NEITHER CONSIDERED ADDITIONA L EVIDENCE FILED BY THE ASSESSEE NOR GIVEN OPPORTUNITY TO THE ASSESSEE. TH EREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE NEEDS TO BE RE-EXAMI NED BY THE AO IN THE LIGHT OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. HENC E, WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO CONSIDER THE ISSUE DENOVO AFT ER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED, FOR STATISTICAL S.A. 569/MUM/2018 8. SINCE WE HAVE DECIDED THE APPEAL ITSELF, WE DO N OT DEEM IT NECESSARY TO DEAL WITH THE STAY APPLICATION, WHICH BECOMES INFR UCTUOUS, HENCE DISMISSED. 5 ITA 6663/MUM/2018 SA 569/MUM/2018 ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2018. SD/- SD/- (MAHAVIR SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 31 ST DECEMBER, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI