ITO WD 1(3), KALYAN V. PARITYAG TRADING P.LTD, BHIWANDI

MA 130/MUM/2020

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1744 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 02-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) M.A. No. 129/MUM/2020 (ITA No. 3296/MUM/2017) Assessment Year: 2011-12 ITO Ward 1(3), 1 st floor, Mohan Plaza, Wayale Nagar, Khadakpada, Kalyan West, Kalyan-421 301. Vs. Patio Mercantile Pvt. Ltd., E7, Additional Kalyan Bhiwandi Industrial Area, Village-Kon, Bhiwandi-421-302. PAN No. AAFCP 4706 J Appellant Respondent M.A. No. 130/MUM/2020 (ITA No. 3298/MUM/2017) Assessment Year: 2011-12 ITO Ward 1(3), 1 st floor, Mohan Plaza, Wayale Nagar, Khadakpada, Kalyan West, Kalyan-421301. Vs. Parityag Trading P. Ltd., E-5/6 Addl. Kalyan Bhiwandi Indl. Area, Village Kon, Bhiwandi, Kalyan-421 302. PAN No. AAFCP 4705 M Appellant Respondent Revenue by : Mr. C.T. Mathews, DR Assessee by : None Date of Hearing : 03/06/2022 Date of pronouncement : 03/06/2022 PER OM PRAKASH KANT By way of the appeals, the Revenue seeks to recall the order of the Tribunal dated 20.08.2019. 2. Before us, the Ld. Departmental Representative (DR) submitted that Tribunal has passed a combined order dated 20.08.2019 in case of Pvt. Ltd., M/s Craft Trading Pvt. Ltd., M/s Patio Mercantile Pvt. Ltd. & M/s Parityag Trading Pvt. Ltd. The Ld. DR submitted that Tribunal has dismissed the appeal of the Revenue observing that there was no infirmity in the order of Ld. CIT(A). 2.1 The Ld. DR further submitted that in identical cases decided by the Tribunal “A” Bench, Trading Pvt. Ltd., M/s Abhiroop Trading Pvt. Ltd. & M/s Agarsen Patio Mercantile Pvt. Ltd. & Parityag ORDER PER OM PRAKASH KANT, AM ese Miscellaneous Applications in captioned appeals, the Revenue seeks to recall the order of the Tribunal dated Before us, the Ld. Departmental Representative (DR) submitted that Tribunal has passed a combined order dated in case of four assessees namely M/s Chardham Trading Pvt. Ltd., M/s Craft Trading Pvt. Ltd., M/s Patio Mercantile Pvt. Ltd. & tyag Trading Pvt. Ltd. The Ld. DR submitted that Tribunal has dismissed the appeal of the Revenue observing that there was no infirmity in the order of Ld. CIT(A). The Ld. DR further submitted that in identical cases decided by the Tribunal “A” Bench, Mumbai in the case of M/s Avdharna Trading Pvt. Ltd., M/s Abhiroop Trading Pvt. Ltd. & M/s Agarsen MA No. 129 & 130/M/2020 Patio Mercantile Pvt. Ltd. & Parityag Trading Pvt. Ltd. 2 Miscellaneous Applications in captioned appeals, the Revenue seeks to recall the order of the Tribunal dated Before us, the Ld. Departmental Representative (DR) submitted that Tribunal has passed a combined order dated four assessees namely M/s Chardham Trading Pvt. Ltd., M/s Craft Trading Pvt. Ltd., M/s Patio Mercantile Pvt. Ltd. & tyag Trading Pvt. Ltd. The Ld. DR submitted that Tribunal has dismissed the appeal of the Revenue observing that there was The Ld. DR further submitted that in identical cases decided by Mumbai in the case of M/s Avdharna Trading Pvt. Ltd., M/s Abhiroop Trading Pvt. Ltd. & M/s Agarsen Mercantile Trading Pvt. Ltd. in ITA Nos. 3291, 3293 & 3338/Mum/2017 matter has been file of the Assessing Officer for decidi the case of above two assessees i.e. namely M/s Patio Mercantile Pvt. Ltd. & M/s Parityag Trading Pvt. Ltd. also the matter should have been restored to the file of the Assessing Officer. Therefore this being mistake apparen be recalled. 3. On the contrary, none appeared on behalf of the assessee despite notifying and therefore the Miscellaneous Application is heard ex-parte qua the assessee after hearing argument of the Ld. DR. 4. We find that the Tribunal in para 5 of the order has adjudicated the issue as under: Patio Mercantile Pvt. Ltd. & Parityag Mercantile Trading Pvt. Ltd. in ITA Nos. 3291, 3293 & matter has been restored the matter back to the file of the Assessing Officer for deciding afresh. According to him, in the case of above two assessees i.e. namely M/s Patio Mercantile Pvt. Ltd. & M/s Parityag Trading Pvt. Ltd. also the matter should have been restored to the file of the Assessing Officer. Therefore this being mistake apparent from record, the order of the Tribunal might On the contrary, none appeared on behalf of the assessee despite notifying and therefore the Miscellaneous Application is qua the assessee after hearing argument of the Ld. We find that the Tribunal in para 5 of the order has adjudicated MA No. 129 & 130/M/2020 Patio Mercantile Pvt. Ltd. & Parityag Trading Pvt. Ltd. 3 Mercantile Trading Pvt. Ltd. in ITA Nos. 3291, 3293 & restored the matter back to the ng afresh. According to him, in the case of above two assessees i.e. namely M/s Patio Mercantile Pvt. Ltd. & M/s Parityag Trading Pvt. Ltd. also the matter should have been restored to the file of the Assessing Officer. Therefore this t from record, the order of the Tribunal might On the contrary, none appeared on behalf of the assessee despite notifying and therefore the Miscellaneous Application is qua the assessee after hearing argument of the Ld. We find that the Tribunal in para 5 of the order has adjudicated “5. After hearing both the parties and perusing material on record, we observe that Ld. CIT(A) has allowed the appeal of assessee partly, after calling the remand In the said remand report, AO stated that assessee has filed all the details qua unsecured sundry creditors, however, stated these could not be allowed to be filed at this stage as the assessee has failed to file these evidences in the assessment proceedings. However, CIT(A) specifically noted that the genuineness of the unsecured loans was proved by the assessee during the course of remand proceedings and similarly in respect of sundry creditors of Rs.1,55,27,426/ Ld. CIT(A) observed that the genuineness of the creditors have been accepted, after due verification thereof. We further note that the AO also submitted second report before CIT(A), submitting therein that assessee equity shares of M/s.Asmeeta I Kanchan Developers Private Limited and from Malav Shah. It was stated in the said report that though the shares had been purchased, the same are not supported by the valuation report. By referring to the provisions of Section 56(2 the Act and stated that the issue of applicability of this section could not be verified. However, Ld. CIT(A) allowed the appeal of assessee, by holding that there is no need to go into the technical issue at this stage and thus allowed the appe perusing the evidences on record and rival submissions, we do not find any infirmity or defect in the order passed by the Ld. CIT(A) and accordingly uphold the same by dismissing the grounds raised by the Revenue. Patio Mercantile Pvt. Ltd. & Parityag 5. After hearing both the parties and perusing material on record, we observe that Ld. CIT(A) has allowed the appeal of assessee partly, after calling the remand report from the AO. In the said remand report, AO stated that assessee has filed all the details qua unsecured sundry creditors, however, stated these could not be allowed to be filed at this stage as the assessee has failed to file these evidences in the assessment proceedings. However, CIT(A) specifically noted that the genuineness of the unsecured loans was proved by the assessee during the course of remand proceedings and similarly in respect of sundry creditors of Rs.1,55,27,426/ observed that the genuineness of the creditors have been accepted, after due verification thereof. We further note that the AO also submitted second report before CIT(A), submitting therein that assessee-company had purchased equity shares of M/s.Asmeeta Infratech Private Limited, Kanchan Developers Private Limited and from Malav Shah. It was stated in the said report that though the shares had been purchased, the same are not supported by the valuation report. By referring to the provisions of Section 56(2 the Act and stated that the issue of applicability of this section could not be verified. However, Ld. CIT(A) allowed the appeal of assessee, by holding that there is no need to go into the technical issue at this stage and thus allowed the appe perusing the evidences on record and rival submissions, we do not find any infirmity or defect in the order passed by the Ld. CIT(A) and accordingly uphold the same by dismissing the grounds raised by the Revenue.” MA No. 129 & 130/M/2020 Patio Mercantile Pvt. Ltd. & Parityag Trading Pvt. Ltd. 4 5. After hearing both the parties and perusing material on record, we observe that Ld. CIT(A) has allowed the appeal of report from the AO. In the said remand report, AO stated that assessee has filed all the details qua unsecured sundry creditors, however, stated these could not be allowed to be filed at this stage as the assessee has failed to file these evidences in the original assessment proceedings. However, CIT(A) specifically noted that the genuineness of the unsecured loans was proved by the assessee during the course of remand proceedings and similarly in respect of sundry creditors of Rs.1,55,27,426/-, observed that the genuineness of the creditors have been accepted, after due verification thereof. We further note that the AO also submitted second report before CIT(A), company had purchased nfratech Private Limited, Kanchan Developers Private Limited and from Malav Shah. It was stated in the said report that though the shares had been purchased, the same are not supported by the valuation report. By referring to the provisions of Section 56(2)(viia) of the Act and stated that the issue of applicability of this section could not be verified. However, Ld. CIT(A) allowed the appeal of assessee, by holding that there is no need to go into the technical issue at this stage and thus allowed the appeal. After perusing the evidences on record and rival submissions, we do not find any infirmity or defect in the order passed by the Ld. CIT(A) and accordingly uphold the same by dismissing the 4.1 We find that the Tribunal a decided the issue. There is no Co-ordinate Bench in the M/s Avdharna Trading Pvt. Ltd. (supra) was cited before the Tribunal therefore we do not find any 20.08.2019 in not following the the Miscellaneous Application. In our opinion, there is no mistake in the order of the Tribunal the Ld. DR in Miscellaneous Applications are rejected. 5. In the result, both the Miscellaneous Applications filed by the Revenue are dismissed. Order pronounced in the open Court on Sd/- (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 03/06/2022 Dragon Legal/Rahul Sharma, Sr. P.S. Patio Mercantile Pvt. Ltd. & Parityag We find that the Tribunal after hearing both the parties has decided the issue. There is no evidence on record that decision of ordinate Bench in the M/s Avdharna Trading Pvt. Ltd. (supra) was cited before the Tribunal during appellate proceedings and therefore we do not find any error in the order of the in not following the said order cited by the Revenue in the Miscellaneous Application. In our opinion, there is no mistake in the order of the Tribunal and therefore, the contention in Miscellaneous Applications are rejected. both the Miscellaneous Applications filed by the Revenue are dismissed. ounced in the open Court on 03/06/2022. Sd/- KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MA No. 129 & 130/M/2020 Patio Mercantile Pvt. Ltd. & Parityag Trading Pvt. Ltd. 5 fter hearing both the parties has evidence on record that decision of ordinate Bench in the M/s Avdharna Trading Pvt. Ltd. (supra) proceedings and error in the order of the Tribunal dated cited by the Revenue in the Miscellaneous Application. In our opinion, there is no mistake in , the contentions raised by in Miscellaneous Applications are rejected. both the Miscellaneous Applications filed by the /06/2022. OM PRAKASH KANT) MEMBER Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// Patio Mercantile Pvt. Ltd. & Parityag Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai MA No. 129 & 130/M/2020 Patio Mercantile Pvt. Ltd. & Parityag Trading Pvt. Ltd. 6 Sr. Private Secretary) ITAT, Mumbai