PRAGATEE DEVELOPERS, MUMBAI V. ITO-12(1)(4), MUMBAI

ITA 7505/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4036 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LEENA SRIVASTAVA
• Keywords: Additional evidence; Condonation of delay
• Section: 142(1); 133A; 195; 22; 144

Judgement Text

, , ' IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER . 7505 //201 8 (. . 2011-12 ) ITA NO. 7505/MUM/2018 (A.Y.2011-12) PRAGATEE DEVELOPERS 4/132, BAZAARGATE STREET, 4 TH FLOOR, HAJI KASAM BUILDING, FORT, MUMBAI-400001 / VS. ITO-12(1)(4) MUMBAI. PAN/GIR NO: ACPPS1095Q ( /APPELLANT) : ( / RESPONDENT) . 7506 //201 8 (. . 2012-13 ) ITA NO. 7506/MUM/2018 (A.Y.2012-13) PRAGATEE DEVELOPERS 4/132, BAZAARGATE STREET, 4 TH FLOOR, HAJI KASAM BUILDING, FORT, MUMBAI-400001 / VS. JT. CIT-17(2) MUMBAI. PAN/GIR NO: ACPPS1095Q ( /APPELLANT) : ( / RESPONDENT) ASSESSEE BY : SHRI NISHIT GANDHI (AR) REVENUE BY : SHRI LEENA SRIVASTAVA (CIT-DR) / DATE OF HEARING : 15/10/2020 / DATE OF PRONOUNCEMENT : 27/10/2020 2 ITA 7505 & 7506 MUM 2018-PRAGATEE DEVELOPERS / ORDER THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-28, MUMBAI [IN SHORT THE CIT(A)] FOR THE ASSESSMENT YEAR 2011-12 & 2012-13 RESPECTIVELY. BOTH THE IMPUGNED ORDERS ARE OF EVEN DATE I.E. 26.03.2018. SINCE, THE ISSUES RAISED IN BOTH THE APPEALS ARE COMMON, THESE APPEALS ARE TAKEN UP TOGE THER AND ARE DISPOSED OFF BY THIS COMMON ORDER. 2. THESE APPEALS HAVE BEEN FILED WITH DELAY OF 202 DAYS. THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF DELAY S UPPORTED BY AN AFFIDAVIT. AS PER THE APPLICATION OF THE ASSESSEE, THE ASSESSEE C AME TO KNOW ABOUT PASSING OF IMPUGNED ORDER ONLY WHEN THE ASSESSING OFFICER C ALLED THE ASSESSEE TO KNOW ABOUT THE DETAILS OF THE PERSONAL ASSETS OF THE PAR TNERS VIDE LETTER DATED 06.12.2018. IN RESPONSE TO SAID LETTER, THE ASSESSE ES PARTNER MET THE ASSESSING OFFICER ON 10.12.2018. IT WAS AT THE TIME THE ASSES SEE CAME TO KNOW ABOUT THE DISPOSAL OF APPEAL BY THE CIT(A). THE COPY OF CIT(A ) ORDER WAS RECEIVED FROM THE OFFICE OF ASSESSING OFFICER ON 10.12.2018. IT IS FU RTHER CONTENDED THAT THE BUSINESS OF THE ASSESSEE WAS IN BAD SHAPE. THE ASSE SSEE HAD TO VACATE THE LEASED PREMISES AND SHIFT TO NEW LOCATION. THE ASSE SSEE DULY INFORMED NEW ADDRESS TO THE CIT(A) VIDE LETTER DATED 13.09.2017. HOWEVER, THE ORDER WAS NEVER COMMUNICATED TO THE ASSESSEE AT THE NEW ADDRE SS. HENCE, THE ASSESSEE WAS UNAWARE OF THE ORDER PASSED BY CIT(A). 3. WE HAVE CONSIDERED THE REASONS GIVEN BY ASSESSEE FOR DELAY IN FILING OF THE PRESENT APPEALS.THE DELAY PURPORTEDLY OCCURRED ON ACCOUNT OF NON- COMMUNICATION OF THE IMPUGNED ORDERS. THE REASON AP PEARS TO BE PLAUSIBLE 3 ITA 7505 & 7506 MUM 2018-PRAGATEE DEVELOPERS AND BONAFIDE. THE HONBLE APEX COURT IN THE CASE OF RAMNATH SAO VS. GOVARDHAN SAO REPORTED AS (2002) (3) SCC 195 HAS HE LD THAT CONDONATION OF DELAY SHOULD BE THE RULE AND REFUSAL AN EXCEPTION. THE EXPLANATION FURNISHED EXPLAINING THE DELAY SHOULD BE ACCEPTED AND THE DEL AY SHOULD BE CONDONED WITHOUT TAKING HYPER-TECHNICAL OR PEDANTIC VIEW. IN THE LIGHT OF EXPLANATION FURNISHED BY THE ASSESSEE CAUSING DELAY IN FILING O F THE APPEALS AND AFORESAID DECISION OF HONBLE SUPREME COURT OF INDIA, THE DEL AY IN FILING OF APPEALS IS CONDONED AND THE APPEALS ARE ADMITTED TO BE HEARD O N MERIT. 4. SHRI NISHIT GANDHI APPEARING ON BEHALF OF THE AS SESSEE SUBMITTED AT THE OUTSET THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE HAD FILED ADDITIONAL EVIDENCE BEFORE THE CIT(A). THE CI T(A) SOUGHT REMAND REPORT FROM THE ASSESSING OFFICER, HOWEVER, THE REMAND REP ORT WAS NEVER PROVIDED TO THE ASSESSEE. THUS, THE CIT(A) MERELY ON THE BASIS OF REMAND REPORT REJECTED THE ASSESSEES PLEA FOR ADMITTING ADDITIONAL EVIDEN CE AND ALSO DISMISSED THE APPEALS OF ASSESSEE. THE LD. AUTHORIZED REPRESENTAT IVE (AR) SUBMITTED THAT IF A FAIR OPPORTUNITY IS GRANTED TO THE ASSESSEE TO PRES ENT ITS CASE BEFORE THE CIT(A), THE ASSESSEE WOULD BE ABLE TO SUBSTANTIATE THAT ADD ITIONS MADE BY THE ASSESSING OFFICER ARE NOT WARRANTED. 5. ON THE OTHER HAND, MS. LEENA SRIVASTAVA REPRESEN TING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED F OR DISMISSING THE APPEALS OF ASSESSEE. THE DR SUBMITTED THAT THE ASSE SSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER IN ASSESSMENT PROCEEDINGS AND THEREAFTER FILED ADDITIONAL EVIDENCES BEFORE THE CIT(A) WHICH WERE RIGHTLY REJE CTED. 4 ITA 7505 & 7506 MUM 2018-PRAGATEE DEVELOPERS 6. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SIDE S. A PERUSAL OF THE ASSESSMENT ORDER REVEALS THAT THE ORDER HAS BEEN PA SSED U/S 144 OF THE ACT. AFTER SERVICE OF NOTICE U/S 143(2), THE ASSESSING O FFICER ISSUED NOTICES U/S 142(1) OF THE ACT TO THE ASSESSEE ON 28.06.2013, 22 .11.2013 AND FINALLY ON 28.02.2014. DESPITE SERVICE OF NOTICES THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER. THE AR OF THE ASSESSEE WAS ASKED TO EXPLAIN REASON FOR ASSESSEES NON-APPEARANCE BEFORE THE ASSESSING OFFI CER. THE AR HAS FILED AN AFFIDAVIT OF SH. NARESH C. BAROT, MANAGING PARTNER OF THE ASSESSEE FIRM DATED 14.10.2020 EXPLAINING REASONS FOR NON-APPEARANCE OF ASSESSEE BEFORE THE ASSESSING OFFICER. A PERUSAL OF AFFIDAVIT SHOWS THA T NON REPRESENTATION OF ASSESSEE BEFORE ASSESSING OFFICER IN ASSESSMENT PRO CEEDINGS IS ATTRIBUTED TO MULTIPLE LITIGATION WITH DIRECT AND INDIRECT TAX AU THORITIES IN 2013 FOLLOWED BY SURVEY ACTION U/S 133A OF THE ACT IN DECEMBER 2013. FURTHER, THE CHARTERED ACCOUNTANT WHO WAS HANDLING THE ASSESSMENT LEFT THE ASSESSEE IN LURCH. AFTER EXAMINING THE CONTENTS OF AFFIDAVIT, WE ARE SATISFI ED THAT DUE TO ASSESSEES INVOLVEMENT IN MULTIPLE LITIGATION COUPLED WITH THE FACT THAT THE CHARTERED ACCOUNTANT WHO WAS HANDLING ASSESSMENT ABANDONED TH E ASSESSEE OSTENSIBLY HAD PUT THE ASSESSEE IN TIGHT SPOT. THE ASSESSEE HA S BEEN FAIRLY ABLE TO EXPLAIN NON-APPEARANCE BEFORE THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS. 7. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE ASSESSEE HAD FILED AN APPLICATION FOR BRINGING ON RECORD SOME ADDITIONAL EVIDENCES. THE SAME WAS REJECTED BY THE FIRST APPELLATE AUTHORITY (FAA). IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO RESTORE BOTH THESE APPEALS T O THE CIT(A). LIBERTY IS GRANTED TO THE ASSESSEE TO FILE ADDITIONAL EVIDENCE S BEFORE THE CIT(A). THE 5 ITA 7505 & 7506 MUM 2018-PRAGATEE DEVELOPERS CIT(A) SHALL DECIDE THE APPEALS DENOVO BY AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 8. IN THE RESULT, IMPUGNED ORDERS ARE SET-ASIDE AND THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY THE 27 TH DAY OF OCTOBER, 2020. SD/- SD/- /- (RAJESH KUMAR) (VIKAS AWASTHY) /ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, +/ DATED: 27/10/2020 S.K., PS , . , . , . , . COPY OF THE ORDER FORWARDED TO : 1. 0 / THE APPELLANT , 2. ,1 / THE RESPONDENT. 3. 2 ( )/ THE CIT(A)- 4. 2 CIT 5. , , . . . , / DR, ITAT, MUMBAI 6. 6 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI