M/S ANDAZ TRADING & INFRASTRUCTURE PVT LTD,MUMBAI V. ITO -WARD 4(1)(3), MUMBAI

ITA 5841/MUM/2025

AI Insights

The case involves M/s Andaz Trading & Infrastructure Pvt. Ltd., which appealed against the order of the CIT(A) dismissing their appeal concerning an assessment order under Section 143(3) of the Income Tax Act, 1961. The CIT(A) had dismissed the appeal on the basis that the assessee had opted for the VSVS, which the assessee contended was incorrect as they had not opted for VSVS concerning the assessment order but only for penalty appeals under Sections 271D and 271E. The ITAT found merit in the assessee's argument, noting that the CIT(A) had not considered the submission that the VSVS application did not cover the assessment order in question. Consequently, the ITAT remitted the case back to the CIT(A) for a fresh evaluation on the merits of the additions and disallowances made by the Assessing Officer.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 790551 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 23-09-2025
• Other Referred Cases: Collector, Land Acquisition Vs. MST.Katiji & Ors.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: SURENDRA MOHAN
• Assessee Lawyers: RUCHI RATHOD
• Keywords: Condonation of delay; Set aside; TDS; FORM 26AS
• Section: 143(3); 43CA; 43B; 40(a)(ia)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT & MS PADMAVATHY S, ACCCOUNTANT MEMBER I.T.A. No. 5841/Mum/2025 (Assessment Year: 2016-17) M/s Andaz Trading & Infrastructure Pvt. Ltd. 186, Hira Manek Building, Dadi Seth Agiary Lane, Chira Bazar, Mumbai- 400002 PAN: AAGCA3182L Vs. Income Tax Officer MUM/W/441/3, Ward 4(1)(3), Mumbai Room No. 637A, Aayakar Bhawan, Maharshi Karve Marg, Mumbai-400020 Appellant) : Respondent) Assessee by : Ms. Ruchi Rathod Revenue by : Shri. Surendra Mohan, Sr. DR Date of Hearing : 19.11.2025 Date of Pronouncement : 02.12.2025 O R D E R Per Padmavathy S, AM: This appeal by the assessee is against the order of the Commissioner of Income Tax Appeals/National Faceless Appeal Centre (NFAC), Delhi passed u/s. 250 of the Income Tax Act, 1961 (the 'Act') dated 20.12.2022 for AY 2016-17. The grounds raised by the assessee are as under – “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in dismissing the appeal of the Appellant against the Printed from counselvise.com 2 ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd. Assessment Order dated 27/12/2018 passed under Section 143(3) of the Act, on the erroneous premise that the Appellant had opted for withdrawal of the appeal under the DTVSV Scheme, 2020, although no such withdrawal was ever made in respect of the said assessment appeal. 2. On the facts and in the circumstances of the case and in law, the CIT(A) failed to appreciate that the Appellant had opted for the DTVSV Scheme, 2020 only in respect of the penalty appeals arising out of orders under Sections 271D and 271E of the Act, and not in respect of the appeal against the Assessment Order. Hence, the dismissal of the quantum appeal is patently illegal, without jurisdiction, and liable to be set aside. 3. On the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in law by failing to appreciate that an appeal once duly instituted cannot be deemed to be withdrawn in the absence of any express withdrawal application filed by the Appellant. 4. On the facts and in the circumstances of the case and in law, the Assessment Order dated 27/12/2018 passed under Section 143(3) of the Act is bad in law and liable to be quashed, as the Ld. AO erred in making the following additions/disallowances: i. Addition of Rs. 91,10,000/- under Section 43CA of the Act, ignoring the fact that the subject flat was jointly sold by the Appellant and a tenant, and the Appellant's share of area and consideration was duly disclosed; ii. Disallowance of Rs. 9,81,360/- under Section 43B of the Act, ignoring that the liability was either paid within the prescribed time or not otherwise disallowable; iii. Addition of Rs. 4,63,770/- under Section 40(a)(ia) of the Act, despite full compliance with TDS provisions and reconciliation of Form 26AS with expenses. 5. On the facts and in the circumstances of the case and in law, the Impugned Order passed by the CIT(A) is contrary to law, facts, and circumstances of the case, and therefore deserve to be set-aside. 6. The Appellant craves leave to add, amend, vary, or withdraw any ground of appeal at the time of hearing.” Printed from counselvise.com 3 ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd. 2. The assessee is a company and filed the return of income for A.Y. 2016-17 on 17.10.2016 declaring income of Rs. Nil. The case was selected for scrutiny and the statutory notices were duly served on the assessee. The assessing officer completed the assessment u/s 143(3) vide order dated 27.12.2018 wherein he made addition/ disallowances to the tune of Rs. 1,05,55,130/-. Aggrieved the assessee has filed the appeal before the Ld. CIT(A). The Ld. CIT(A) vide order dated 17.08.2020 dismissed the appeal as withdrawn stating that the assessee has opted for Vivad-Se-Vishwas Scheme (VSVS) vide declaration dated 28.01.2021. The assessee subsequently filed the appeal in form No. 35 once again before the Ld. CIT(A) on 13.09.2022. In the said appeal while quoting reasons for delay the assessee has stated that the appeal against order u/s 143(3) was not covered in the VSVS application made by assessee and the assessee opted for VSVS only for the penalty levied u/s 271D and 271E of the Act. However the Ld. CIT(A) once again dismissed the appeal of the assessee vide order dated 20.12.2022 stating that the assessee has opted for VSVS and that the appeal is dismissed as withdrawn. The assessee is in appeal before the Tribunal against the order of the Ld. CIT(A). 3. Therefore the delay of 938 days in filing the appeal by the assessee before the tribunal. The assessee has filed the petition for Condonation of Delay in this regard stating that the assessee was exploring the other options of rectifying the CIT(A)'s order who has dismissed the appeal based on the erroneous understanding that the assessee has opted for VSVS against the order u/s.143(3). Having heard both the parties and perused the material on record, we are of the view that there is a reasonable and sufficient cause for the delay in filing the appeal before the Tribunal. Therefore following the Hon’ble Supreme Court decision in the case of Printed from counselvise.com 4 ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd. Collector, Land Acquisition Vs. MST.Katiji & Ors., (167 ITR 471) (SC) we condone the delay of 938 days in filing the appeal and admit the appeal for adjudication. 4. We heard the parties and perused the material on record. From the perusal of Form No.35 filed by the assessee second time on 13.09.2022 we notice that the assessee has clearly stated that no application u/s VSVS is receipt of the order u/s 143(3). We further notice that the CIT(A) while dismissing the appeal as withdrawn for the second time has not considered the said submission of the assessee and had dismissed the appeal on the same ground that the assessee has opted for VSVS. We also notice that the CIT(A) has not considered the grounds raised by the assessee on merits and has dismissed the appeal as withdrawn. The ld AR during the course of hearing submitted that assessee has not opted for VSVS for the order u/s.143(3) and since the CIT(A) has dismissed the appeal on misunderstood facts, prayed that the appeal may be remitted back to the CIT(A) for a denovo consideration. The ld DR did not raise any objection to the said prayer of the ld AR. Considering facts peculiar to the case we are of the considered view that the appeal need to be remitted back to the Ld. CIT(A) for fresh consideration of the addition/disallowances made by the AO on merits. Accordingly, the appeal is remitted back to the Ld. CIT(A) with a direction to considered the ground raised by the assessee against the order u/s 143(3) and adjudicate the ground on merits by calling from the required details to decide the case in accordance with the law. The CIT(A) is further directed to condone the delay in filing the appeal before CIT(A) in the light of the fact that the first appeal was dismissed without considering that the assessee has not opted for VSVS against order u/s.143(3). Needless to say that Printed from counselvise.com 5 ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd. the assessee being given a reasonable opportunity to being heard. It is order accordingly. 5. In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 02-12-2025. Sd/- Sd/- (SAKTIJIT DEY) (PADMAVATHY S) VICE PRESIDENT ACCOUNTANT MEMBER Disha Raut Stenographer Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. DR, ITAT, Mumbai 4. 5. Guard File CIT BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai Printed from counselvise.com "