PANACIA PROPERTIES PVT LTD., THANE V. DY CIT CC 2 (1), MUMBAI

ITA 7837/MUM/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6331 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2021
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 18-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Principle of natural justice
• Section: 68; 132; 143(3); 48; 153C

Judgement Text

ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) AND MS. SUCHITRA RAGHUNATH KAMBLE (JUDICIAL MEMBER) ITA Nos. 7837 & 7838/MUM/2019 (Assessment Years: 2013-14 & 2015-16) Panacia Properties Pvt. Ltd. Office No. 2 & 3, Mezzanine Floor, Vihang Vihar, Panchpakahadi, Thane West, Thane – 400 602 Vs. Dy. CIT, CC 2(1) Room No. 1007, 10 th Floor, Pratishtha Bhavan, Old CGO, Annexe, Mumbai – 400 020 PAN No. AAFCP5557M (Assessee) (Revenue) Assessee by : Shri Shashi Bekal, A.R Revenue by : Shri Ashish Kumar, D.R D a t e o f H e a r i n g : 1 4 / 1 2/ 2 0 2 1 Dat e o f p r o n o u n c e m e n t : 15/ 1 2 / 2 0 2 1 ORDER PER SUCHITRA RAGHUNATH KAMBLE, J.M: These two appeals are filed by the assessee against the orders dated 30.08.2019 passed by the CIT(A)-48, Mumbai, for Assessment Year 2013- 14 & Assessment Year 2015-16. The assessee has raised the following grounds before us: “ITA No. 7837/Mum/2019: 1. On the facts and circumstances of the case and law on the subject the learned Commissioner of Income Tax (Appeals) erred in deciding the appeal ex-parte against assessment order u/s 143(3) r.w.s.143C of the Income Tax Act. 2. On the facts and circumstances of the case and law on the subject the learned CIT(A) officer erred in adding Rs.3,50,00,000/- u/s 68 on account of unexplained account to the returned income. On the facts and circumstances of the case and law ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 2 on the subject the CIT(A) erred in upholding the same & the addition made be deleted. The appellant craves leave to add/modify, delete the grounds of appeal on or before date of hearing.” “ITA No. 7838/Mum/2019: On the facts and circumstances of the case and law on the subject the learned CIT(A) erred in adding Rs.74,13,10 u/s 68 on account for suppression of sales price of flats to the returned income. On the facts and circumstances of the case and law on the subject the CIT(A) erred in upholding the same & the addition made be deleted. The appellant craves leave to add/modify, delete the grounds of appeal on or before date of hearing.” ITA No. 7837/Mum/2019 2. For Assessment Year 2013-14, the return of income was filed by the assessee on 29.09.2013 declaring nil income and current year loss of Rs.1,29,824/-. In assessee‟s case, the search and seizure action was conducted on 19.03.2015 u/s 133 of the Income Act, as well as on its associate group companies including promoters/directors which has resulted in detection of undisclosed income amounting to Rs.149,03,66,361/-. The Assessing Officer calling for the details and taking the same on record passed assessment order dated 30.12.2017 u/s 153C r.w.s 143(3) of the Income Tax Act, 1961, thereby making addition of Rs.3,50,00,000/- u/s 68 of the Act, as the assessee could not prove the creditworthiness and genuineness of the loans from the lender parties. 3. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) vide order dated 30.08.2019 dismissed the appeal of the assessee for non-prosecution [applying the decision of CIT Vs. Multiplan India Pvt. Ltd. 48 ITD 320 (Delhi)]. ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 3 4. The ld. Authorized Representative (in short „A.R‟) submitted that the matter may be remanded back to the file of the A.O as proper verification was not done by the A.O. 5. The ld. Departmental Representative (for short „D.R‟) relied upon the assessment order and the order of the CIT(A). 6. We have heard both the parties, perused the relevant material available on record. It is pertinent to note that there is delay of 16 days in filing the present appeal stating thereby the reason that authorized signatory was out of town for 20 days and the appeal could not be filed within the prescribed time period. The delay is condoned. From the perusal of the order of the CIT(A) it can be seen that the CIT(A) though mentioned that notice dated 03.07.2019, 16.07.2019 and 26.08.2019 was issued and served to the assessee but the CIT(A) has not given a details of service to the assessee. The CIT(A) has relied upon the decision of the Hon‟ble Delhi High Court in the case of CIT Vs. Gold Leaf Capital Corporation Ltd. (ITA No. 798 of 2009, dated 02.09.2011) as well as the decision of the Hon‟ble Bombay High Court in the case of M/s Chemipol Vs. Union of India (Central Excise Appeal No. 62 of 2009) and also relied upon the decision of the Hon‟ble Madras High Court in the case of Tukojirao Holkar Vs. CWT (223 ITR 480). While concluding the CIT(A) held that since the assessee is not interested in pursuing the appeal and thereafter taking from the support of the decision in case of CIT Vs. Multiplan India Pvt. Ltd. 48 ITR 320, the appeal is dismissed. The CIT(A) has not at all discussed the merits of the case as well as not taken the cognizance of the grounds taken before the CIT(A). As per the contentions of the assessee, if the assessment order is passed without taking cognizance of the evidences and thereafter passed assessment order, then the actual remedy lies before the CIT(A). Since the CIT(A) has not considered the case on merit, it will be appropriate to remand back the entire issue to the file of the CIT(A) and the CIT(A) will decide the case on merit after taking into account the evidences ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 4 produced by the assessee before the Assessing officer (at the time of the assessment proceedings). Thus, the matter is set-aside to file of the CIT(A) for appropriate adjudication on merit. Needless to say, the assessee had given opportunity of hearing by following principle of natural justice. 7. The appeal filed by the assessee being ITA No. 7837/Mum/2019 is partly allowed for statistical purposes. ITA No. 7838/Mum/2019 8. For Assessment Year 2015-16, the return of income was filed on 22.12.2017 declaring total income of Rs.94,35,979/-. The search and seizure action was carried out in the case of M/s Luxora Infrastructure Pvt. Ltd. and its associated group companies including promoters/directors u/s 132 of the Income Tax Act. During the course of the survey proceedings in the case of Soham Group Company of the assessee, it was found by the Assessing officer that the real estate project of the assessee had reached the stage of completion, but the assessee did not offer any income from the same in its return of income. The Assessing Officer vide order dated 30.12.2017 made addition of Rs.74,13,120/- thereby stating that the construction cost of the assessee could not be verified due to late filing of return as well as the suppression of the sale price as all the agreement sale value are exactly equal. 9. Being aggrieved by the assessment order the assessee has filed the appeal before the CIT(A). 10. The CIT(A) dismissed the appeal thereby relying upon the decision of the Tribunal in the case of CIT Vs. Multiplan India Pvt. Ltd. (supra). ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 5 11. The ld. A.R pointed out para 4.5 of the assessment order and submitted that the Assessing Officer has not verified the details and therefore, the matter may be set-aside to the file of the A.O. 12. The ld. D.R relied upon the assessment order and the order of the CIT(A). 13. We have heard both the parties, perused the relevant material available on record. It is pertinent to note that there is delay of 16 days in filing the present appeal stating thereby the reason that authorized signatory was out of town for 20 days and the appeal could not be filed within the prescribed time period. The delay is condoned. From the perusal of the order of the CIT(A) it can be seen that the CIT(A) though mentioned that notice dated 03.07.2019, 16.07.2019 and 26.08.2019 was issued and served to the assessee but the CIT(A) has not given a details of service to the assessee. The CIT(A) has relied upon the decision of the Hon‟ble Delhi High Court in the case of CIT Vs. Gold Leaf Capital Corporation Ltd. (ITA No. 798 of 2009, dated 02.09.2011) as well as the decision of the Hon‟ble Bombay High Court in the case of M/s Chemipol Vs. Union of India (Central Excise Appeal No. 62 of 2009) and also relied upon the decision of the Hon‟ble Madras High Court in the case of Tukojirao Holkar Vs. CWT (223 ITR 480). While concluding the CIT(A) held that since the assessee is not interested in pursuing the appeal and thereafter taking from the support of the decision in case of CIT Vs. Multiplan India Pvt. Ltd. 48 ITR 320, the appeal is dismissed. The CIT(A) has not at all discussed the merits of the case as well as not taken the cognizance of the grounds taken before the CIT(A). As per the contentions of the assessee, if the assessment order is passed without taking cognizance of the evidences and thereafter passed assessment order, then the actual remedy lies before the CIT(A). Since the CIT(A) has not considered the case on merit, it will be appropriate to remand back the entire issue to the file of the CIT(A) and the CIT(A) will decide the case on merit after taking into account the evidences produced by the assessee before the Assessing officer (at the time of the ITA Nos.7837 & 7838/Mum/2019 A.Y. 2013-14 & 2015-16 Panacia Properties Pvt. Ltd. Vs. Dy.CIT,CC 2(1) 6 assessment proceedings). Thus, the matter is set-aside to file of the CIT(A) for appropriate adjudication on merit. Needless to say, the assessee had given opportunity of hearing by following principle of natural justice. 14. Resultantly, both the appeals filed by the assessee i.e ITA Nos. 7837 & 7838/Mum/2019 are partly allowed for statistical purposes. Order pronounced in the open court on 15.12.2021. Sd/- Sd/- (Shamim Yahya) (Suchitra Raghunath Kamble) Accountant Member Judicial Member Place: Mumbai Date 15.12.2021 PS. Rohit आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अिीिार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त(अिीि) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 6. गार्ड फाईि / Guard file. सत्यातिि प्रति //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.