F. RACEK & CO. P.LTD, MUMBAI V. DCIT 4(2)(2), MUMBAI

ITA 6707/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9699 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 16-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Assessee Lawyers: DEPENDRA JAIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Reasonable cause
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 6707/MUM./2016 ( ASSESSMENT YEAR : 20 12 13 ) F. RACEK & CO. PVT. LTD. SHREEJI BHAWAN, K.M. SHARMA MARG G. PRINCESS STREET, MUMBAI 400 002 PAN AAACF0620Q . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE 4 (2) (2) , MUMBAI . RESPONDENT ASSE SSEE BY : SHRI DEPENDRA JAIN REVENUE BY : MS. ARJU GARODIA DATE OF HEARING 26 . 0 3 .2018 DATE OF ORDER 28.03.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 12 TH AUGUST 2016, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 9, MUMBAI, FOR THE ASSESSMENT YEAR 2012 13. 2 . BRIEF FACTS ARE, THE ASSESSEE A COMPANY IS ENGAGED IN THE BUSINESS OF TRADING IN LANTERNS, MANTLES, STOVES, ETC. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2012, DECLARING TOTAL INCOME OF ` 4,35,68,920. THE R ETURN OF INCOME FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND 2 F. RACEK & CO. PVT. LTD. THE ASSESSING OFFICER ULTIMATELY COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT BY DETERMINING THE TOTAL INCOME AT ` 4,81,18,670. THE ENHANCEMENT OF INCOME BY THE ASSESSING OFFIC ER WAS ON ACCOUNT OF ADDITION MADE TOWARDS UNEXPLAINED CASH CREDIT AND SHORT TERM CAPITAL GAIN. BEING AGGRIEVED OF THE ASSESSMENT ORDER SO PASSED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). 3 . AS IT APPEARS FROM THE FACTS ON REC ORD, THE APPEAL FILED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER (APPEALS) WAS DELAYED BY 178 DAYS. THE ASSESSEE FILED AN APPLICATION SEEKING CONDONATION OF DELAY, INTER ALIA, ON THE GROUND THAT THE SENIOR PARTNER OF ASSESSEES TAX CONSULTANT WHO WAS TAKING CARE OF ALL TAX MATTERS HAVING PASSED AWAY, THERE WAS COMMUNICATION GAP RESULTING IN DELAY IN FILING THE APPEAL. THE LEARNED COMMISSIONER (APPEALS), HOWEVER, DID NOT FIND THE EXPLANATION OF ASSESSEE SATISFACTORY. HE OPINED THAT THE DEATH OF SENIOR PARTNER OF TAX CONSULTANT FIRM DID NOT AFFECT THE TAX PROCEEDING IN ANY MANNER. ACCORDINGLY, HE REFUSED TO CONDONE THE DELAY OF 178 DAYS. CONSEQUENTLY, THE APPEAL WAS DISMISSED IN LIMINE WITHOUT DECIDING ON MERITS. 4 . THE LEARNED AUTHORISED REPRESENTATIVE RE ITERAT ING THE STAND TAKEN BEFORE THE FIRST APPELLATE AUTHORITY SUBMITTED THAT THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS) WAS DUE 3 F. RACEK & CO. PVT. LTD. TO GENUINE CAUSE, HENCE, SHOULD HAVE BEEN CONDONED. HE SUBMITTED, THE MATTER MAY BE RESTORED BACK TO THE LEARNED COMMISSIONER (APPEALS) FOR DECIDING THE ISSUES ON MERIT S . 5 . LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS). 6 . HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD , WE ARE OF THE CONSIDERED OPINION THAT THE DELAY IN FILING OF APPEAL BEFORE THE FIRST APPELLATE AUTHORITY IS DUE TO A REASONABLE CAUSE. THEREFORE, THE LEARNED COMMISSIONER (APPEALS) SHOULD HAVE CONDONED THE DELAY AND DECIDE D ASSESSEES APPEAL ON MERIT. IN VIEW OF THE AFORESAID, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL ON MERITS AFTER REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT , ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.03.2018 SD/ - B.R. BASKARAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.03.2018 4 F. RACEK & CO. PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (ASSTT. REGISTRAR/SR.P.S) ITAT, MUMBAI