MUTHA FOUNDERS P.LTD, MUMBAI V. ASST CIT RG 4(2), MUMBAI

ITA 7390/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8670 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Assessee Lawyers: G P MEHTA
• Keywords: Opportunity of being heard; Principle of natural justice; Earning of tax free income; Condonation of delay
• Section: 143(3); 14A

Judgement Text

K IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI D.T GARASIA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 7390 / MUM/2016 ( / ASSESSMENT YEAR : 2011 - 12 ) MUTHA FOUNDERS PRIVATE LIMITED C/O G.P.MEHTA & COMPANY,CAS 807,TULSIANI CHAMBERS 212, NARIMAN POINT, MUMBAI - 400021 / V. ACIT , RANGE 4(2) AAYAKAR BHAWAN 6 TH FLOOR, M K ROAD MUMBAI - 400020 ./ PAN : A AACM3091N ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI. G P MEHTA REVENUE BY : SHRI. V JENARDHANAN / DATE OF HEARING : 09 - 11 - 2017 / DATE OF PRONOUNCEMENT : 13.11.2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE , BEING ITA NO. 7390/MUM/2016 FOR ASSESSMENT YEAR 2011 - 12 , IS DIRECTED AGAINST THE A PPELLATE ORDER DATED 0 7 - 09 - 2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 9 , MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR ASSESSMENT YEAR 2011 - 12 , APPELLATE PROCEEDINGS HAD ARISEN BEFORE LEARNED CIT(A) FROM THE ASSESSMENT ORDER DATED 31 - 01 - 2014 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN MANUFACTURING AND SELLING OF SHELL MOULDED C.I. & S.G. IRON CASTING. THE ASSES SEE HAS EARNED EXEMPT INCOME TO THE TUNE OF RS. 75,394/ - DURING THE IMPUGNED ASSESSMENT YEAR AS AGAINST I.T.A. NO. 7390 /MUM/201 6 2 WHICH THE ASSESSEE CLAIMED THAT NO EXPENDITURE HAS BEEN INCURRED BY IT FOR EARNING SUCH TAX FREE INCOME. THUS, THE ASSESSEE DID NOT OFFER ANY DISALLOWAN CE U/S 14A. THE AO MADE ADDITIONS BY DISALLOWING EXPENDITURE IN RELATION TO EARNING OF EXEMPT INCOME TO THE TUNE OF RS. 85,709/ - U/S 14A R.W.R. 8D OF INCOME - TAX RULES, 1962, VIDE ASSESSMENT ORDER DATED 31 - 01 - 2014 PASSED BY THE AO U/S 143(3) . 3. THE ASSE SSEE CARRIED THE MATTER IN APPEAL BEFORE LEARNED CIT(A) BY FILING FIRST APPEAL BUT THERE WAS DELAY OF 3 DAYS IN FILING THE APPEAL WHICH DELAY IN FILING THE APPEAL WAS NOT CONDONED BY LEARNED CIT(A) DESPITE THE ASSESSEE EXPLAINING BEFORE LEARNED CIT(A) THAT THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY LIVES IN SATARA DISTRICT OF MAHARASHTRA AND HENCE DOCUMENTS WERE RECEIVED LATE WHICH LED TO DELAY IN FILING APPEAL LATE WITH LEARNED CIT(A) BY THREE DAYS BEYOND TIME STIPULATED U/S 249(2) . THE LEARNED CIT(A) N OT CONDONING THE DELAY OF 3 DAYS PASSED APPELLATE ORDER DATED 07 - 09 - 2016 DISMISSING THE APPEAL WITHOUT DISCUSSING THE ISSUE ON MERITS , VIDE APPELLATE ORDER DATED 07 - 09 - 2016 . 4. AGGRIEVED BY APPELLATE ORDER DATED 07 - 09 - 2016 PASSED BY LEARNED CIT( A), THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. AT THE OUTSET LEARNED COUNSEL FOR THE ASSESSEE PRAYED THAT DIRECTIONS MAY BE ISSUED TO THE LEARNED CIT(A) TO CONDONE THE DELAY OF THREE DAYS IN FILING APPEAL LATE BEYOND TIME STIPULATED U/S 249(2) AND MATTER MAY BE RESTORED TO THE FILE OF LEARNED CIT(A) FOR ADJUDICATING THE ISSUES UNDER THIS APPEAL DE - NOVO ON MERITS. IT WAS SUBMITTED THAT PRO PER AND BONAFIDE EXPLANATIONS WERE SUBMITTED BEFORE LEARNED CIT(A) WHO SHOULD HAVE CONDONED DELAY OF 3 DAYS IN FILING APPEAL LATE WITH LEARNED CIT(A) IN THE INTEREST OF JUSTICE. IT WAS ALSO SUBMITTED THAT THE ITAT HAS DECIDED ISSUE S UNDER THIS APPEAL IN FAVOUR OF THE ASSESSEE FOR AY 2008 - 09 IN ITA NO. 2385/MUM/2012 AND ITA NO. 2270/MUM/2012 VIDE ORDERS DATED 25 - 01 - 2017 AND IF AN OPPORTUNITY IS GRANTED TO THE ASSESSEE , THE ASSESSEE HAS GOOD I.T.A. NO. 7390 /MUM/201 6 3 CASE ON MERITS. THE LEARNED DR FAIRLY STATED THAT THE MATTER BE RESTORED TO THE FILE OF LEARNED CIT(A) TO ADJUDICATE THE ISSUES UNDER THIS APPEAL ON MERITS DENOVO. 5.WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDING ORDERS OF THE AUTHORITIES BELOW. WE HAVE OBSERVED THAT THE ASSESSEE IS ENGAGED IN MANUFACTURING AND SELLING OF SHELL MOULDED C.I. & S.G. IRON CASTING. THE ASSESSEE HAS EARNED EXEMPT INCOME TO THE TUNE OF RS. 75,394/ - DURING THE IMPUGNED ASSESSMENT YEAR AS AGAINST WHICH THE ASSESSEE CLAIMED THAT NO EXPENDITURE HAS BEEN INCURRED BY IT FOR EARNING SUCH TAX FREE INCOME. THE AO MADE ADDITIONS BY DISALLOWING EXPENDITURE IN RELATION TO EARN ING OF EXEMPT INCOME TO THE TUNE OF RS. 85,709/ - U/S 14A R.W.R. 8D OF INCOME - TAX RULES, 1962, VIDE ASSESSMENT ORDER DATED 31 - 01 - 2014 PASSED BY THE AO U/S 143(3) . THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LEARNED CIT(A) BY FILING FIRST APPEAL BUT TH ERE WAS DELAY OF 3 DAYS IN FILING THE APPEAL LATE WITH LEARNED CIT(A) BEYOND TIME STIPULATED U/S 249(2) WHICH DELAY IN FILING THE APPEAL WAS NOT CONDONED BY LEARNED CIT(A) DESPITE THE ASSESSEE EXPLAINING THAT THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY L IVES IN SATARA DISTRICT OF MAHARASHTRA AND HENCE DOCUMENTS WERE RECEIVED LATE WHICH LED TO DELAY IN FILING APPEAL WITH LEARNED CIT(A). THE LEARNED CIT(A) NOT CONDONING THE DELAY OF 3 DAYS PASSED APPELLATE ORDER DATED 07 - 09 - 2016 DISMISSING THE APPEAL WITHOU T DISCUSSING THE ISSUE ON MERITS. IT IS NOW EXPLAINED THAT THE ASSESSEE HAS GOOD CASE ON MERITS AS FOR AY 2008 - 09 UNDER SIMILAR CIRCUMSTANCES THE TRIBUNAL HAS DECIDED THE ISSUE ON MERITS IN FAVOUR OF THE ASSESSEE IN ITA NO. 2385/MUM/2012 AND ITA NO. 2270/M UM/2012 VIDE ORDERS DATED 25 - 01 - 2017. THE SAID COMMON ORDER IS PLACED IN FILE. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE LEARNED CIT(A) OUGHT TO HAVE CONDONED THE DELAY OF 3 DAYS IN FILING THE APPEAL LATE BY THE ASSESSEE I N THE INTEREST OF SUBSTANTIAL JUSTICE VIS - A - VIS TECHNICALITIES KEEPING IN VIEW RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR , LAND ACQUISITION V. MST KATIJI & I.T.A. NO. 7390 /MUM/201 6 4 ORS. (1987) 167 ITR 0471(SC) . THUS, WE DIRECT CONDONATION OF DELAY OF 3 DA YS IN FILING APPEAL LATE BY THE ASSESSEE WITH THE LEARNED CIT(A) BEYOND TIME STIPULATED U/S 249(2) IN THE INTEREST OF SUBSTANTIAL JUSTICE KEEPING IN VIEW RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR , LAND ACQUISITION V. MST KATIJI & ORS. (1987) 167 ITR 0471(SC) AND DIRECT THE LEARNED CIT(A) TO ADJUDICATE THE ISSUES UNDER THIS APPEAL ON MERITS , AS WE ARE INCLINED TO SET ASIDE THE APPELLATE ORDER DATED 07 - 09 - 2016 PASSED BY LEARNED CIT(A) AND RESTORED THE ISSUES UNDER THIS APPEAL BA CK TO THE LEARNED CIT(A) FOR DENOVO ADJUDICATION OF APPEAL ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE LEARNED CIT(A) SHALL GIVE PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW. THE LEARNED CIT(A) SHALL ADMIT EVIDENCES AND EXPLANATIONS SUBMITTED BY THE ASSESSEE IN SUPPORT OF ITS CONTENTIONS. WE WOULD LIKE TO CLARIFY THAT WE HAVE NOT COMMENTED ON MERITS OF THE ISSUES IN THIS APPEAL. WE ORDER ACCORDINGLY. O RDER PRONOUNCED IN THE OPEN COURT ON 13 .11.2017 13 .11.2017 SD/ - SD/ - ( D T GARASIA ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 13 .11.2017 COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, E 6 . MASTER FILE // TUE COPY// I.T.A. NO. 7390 /MUM/201 6 5 BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI