ELIXIR FINANCIAL SERVICES P.LTD, MUMBAI V. ITO 4(1)(4), MUMBAI

ITA 978/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0358 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 12-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH
• Keywords: Principle of natural justice; Bonafide belief; Condonation of delay; Revised return
• Section: 154

Judgement Text

ITA NO.978/M/2015 ELIXIR FINANCIAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH E, MU MBAI BEFORE SHRI P.K. BANSAL, VICE-PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 978/MUM/2015 (ASSESSMENT YEAR- 2007-08) M/S ELIXIR FINANCIAL SERVICES PRIVATE LIMITED, 1001,C, INDIA BULLS FINANCE CENTRE, S.B. MARG, ELPHINSTONE ROAD, MUMBAI 400013 PAN: AAACE3556A VS. INCOME TAX OFFICER, -4(1)(4) MUMBAI . (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI B. PRU SETH (CIT-DR) DATE OF HEARING : 15.06.2017 DATE OF PRONOUNCEMENT : 15 .06.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE U/S. 253 OF THE INCOME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-9 [THE CIT(A)], MUMBAI DATED 09.12.2014 FOR THE ASSESSMENT YEAR 20 07-08. THE ASSESSEE HAS RAISED ONLY ONE GROUND OF APPEAL THAT THE LD COMMIS SIONER (APPEALS) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER UNDER SEC TION 154 OF INCOME-TAX ACT REJECTING THE CLAIM OF ASSESSEE WITHOUT GIVING OPPO RTUNITY OF BEING HEARD IN THE MATTER. THE LD COMMISSIONER (APPEALS) ERRED IN REJE CTING THE APPEAL ON ACCOUNT OF DELAY OF 539 DAYS IN FILING APPEAL, WITHOUT CONS IDERING THE MERIT OF THE CASE. ITA NO.978/M/2015 ELIXIR FINANCIAL 2 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RET URN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 1 ST NOV 2007 DECLARING TOTAL INCOME AT RS. 78,08,335/- . THE ASSESSEE FILED RECTIFICATION APPLICATION DATED AUG UST 5 TH AUGUST 2011, INTERALIA PLEADING THEREIN THAT DUE TO AUDITOR MISTAKE WHILE FILING A RETURN OF INCOME OF SOME OTHER CLIENT THE NAME OF ASSESSEE SHOWING THE NET TAX PAYABLE AT RS.780834/- WAS UPLOADED. THE ASSESSEE ALSO FILED THE AFFIDAVIT OF THE AUDITOR REGARDING THE MISTAKE IN UPLOADING THE EXCEL FILE O F SOME OTHER CLIENT IN THE NAME OF ASSESSEE AND THEREAFTER THE ASSESSEE FILED REVISED RETURN OF INCOME ON 19 TH NUMBER 2007. THE APPLICATION OF THE ASSESSEE WAS R EJECTED BY THE ASSESSING OFFICER. AGGRIEVED, BY THE ORDER OF ASSESSING OFFIC ER THE ASSESSEE FILED APPEAL BEFORE COMMISSIONER P. THERE WAS DELAY OF 539 DAYS IN FILING APPEAL BEFORE COMMISSIONER (APPEALS). THE ASSESSEE FILED AN APPLI CATION FOR CONDONATION OF DELAY IN FILING APPEAL. IN THE APPLICATION FOR COND ONATION OF DELAY THE ASSESSEE PLEADED THAT A REVISION PETITION UNDER SECTION 264 OF THE ACT WAS FILED BY THE ASSESSEE WHICH WAS DISPOSED OF BY COMMISSIONER OF INCOME TAX-4, BOMBAY VIDE ORDER DATED 28 TH DEC 2012 SERVED UPON THE ASSESSEE ON 7 JANUARY 201 3. THE APPLICATION FOR CONDONATION OF DELAY OF THE ASSESS EE WAS REJECTED HOLDING THAT THE REASONS GIVEN BY ASSESSEE IS NOT CONVINCING TH EREBY THE APPEAL OF THE ASSESSEE WAS NOT ADMITTED AND DISMISSED IN LIMINE. FURTHER, AGGRIEVED BY THE ORDER OF COMMISSIONER (APPEALS) THE ASSESSEE FILED PRESENT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE CASE C AME UP HEARING TODAY. AN APPLICATION FOR ADJOURNMENT WAS FILED ON RECORD ON 13 JUNE 2017. ON THE GROUND THAT THE COUNSEL FOR ASSESSEE MEET WITH ACCIDENT ON 30 MAY 2017 AND IS ADVISED ITA NO.978/M/2015 ELIXIR FINANCIAL 3 REST BY THE DOCTORS. THE APPLICATION FOR ADJOURNMEN T WAS REJECTED AND THE MATTER WAS HEARD ON THE BASIS OF MATERIAL AVAILABLE ON REC ORD. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE (DR) FOR REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LEARNED DR FOR THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE CONSUMPTION OF CREDIT AR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FURTHER WE HAVE S EEN THE CONTENTS OF APPLICATION FOR CONDO NATIONAL DELAY FILED BEFORE THE COMMISSIO NER APPEALS. IN THE APPLICATION FOR CONDO NATIONAL DELAY THE ASSESSEE C ATEGORICALLY CONTENDED THAT A REVISION PETITION UNDER SECTION 264 OF THE INCOME T AX WAS FILED AGAINST THE IMPUGNED ASSESSMENT ORDER. THE SAID REVISION PETITI ON WAS DISPOSED OF BY COMMISSIONER (APPEALS) VIDE ORDER DATED 28 DECEMBER 2012, THE ORDER OF COMMISSIONER OF INCOME TAX S WAS SERVED UPON THE AS SESSEE ON 7 JANUARY 2013. AFTER REJECTION OF REVISION PETITION THE ASSESSEE F ILED APPEAL BEFORE COMMISSIONER (APPEALS). IN SUPPORT OF CONFIRMATION OF DELAY THE ASSESSEE FILED APPLICATION FOR CONDONING THE DELAY; HOWEVER, THE S AID APPLICATION WAS DISMISSED BY THE COMMISSIONER (APPEALS) WITHOUT GIVING ANY OP PORTUNITY OF HEARING TO THE ASSESSEE. WE HAVE NOTICED THAT THE ASSESSEE WAS PER USING THE REMEDY UNDER BONAFIDE BELIEF BEFORE THE REVISIONAL AUTHORITY REL ATED TO THE SAME MATTER IN ISSUE; THE ASSESSEE WAS PROSECUTING HIS CASE IN A GOOD-FAI TH IN A WRONG FORUM. IN OUR CONSIDERED OPINION THE TIME SPENT DURING THE REVISI ON PROCEEDING BEFORE COMMISSIONER OF INCOME TAX WAS LIABLE TO BE CONDONE D BY LD COMMISSIONER (APPEALS) WHILE HEARING THE APPEAL OF ASSESSEE ON M ERIT. THE APPLICATION FOR ITA NO.978/M/2015 ELIXIR FINANCIAL 4 CONDONATION OF DELAY FILED BY ASSESSEE WAS REJECTED WITHOUT GIVING ANY OPPORTUNITY OR CONSIDERING THE CASE OF ASSESSEE ON MERIT. THUS, CONSIDERING THE PRINCIPAL OF NATURAL JUSTICE, WE HEREBY CONDONED TH E DELAY IN FILING APPEAL BEFORE COMMISSIONER (APPEALS). SINCE, THE LEARNED C OMMISSIONER (APPEALS) HAS NOT CONSIDERED THE MERIT OF THE CASE; WE DEEM IT AP PROPRIATE TO RESTORE THE ISSUE TO THE FILE OF LEARNED COMMISSIONER (APPEALS) TO DE CIDE THE MATTER ON MERIT. NEEDLESS TO SAY THAT LEARNED COMMISSIONER (APPEALS) SHALL GRANT SUFFICIENT AND ADEQUATE OPPORTUNITY BEFORE PASSING THE ORDER IN AC CORDANCE WITH LAW. WITH THE OBSERVATION THE GROUND OF APPEAL RAISED BY ASSESSEE IS ALLOWED. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER ANNOUNCED S IN THE OPEN COURT ON 15 TH DAY OF JUNE 2017 WHILE HEARING THE APPEAL. SD/- SD/- (P.K. BANSAL) (PAWAN SINGH) (VICE-PRESIDENT) JUDICIAL MEMBER MUMBAI; DATED 15 /06/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/