MOTION DRIVETRONICS PRIVATE LTD., Mumbai V. ACIT 15 (2)(3), Mumbai

MA 139/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5645 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-06-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) “SMC" BENCH, MUMBAI BEFORE SHRI VIKAS AWASTHY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 139/MUM/2021 [ARISING OUT OF ITA.No. 828/MUM/2019 (A.Y. 2010-11)] Motion Drivetronics Pvt. Ltd., EL-108, Near Telco Electronic Zone TTC Industrial Area, Mahape New Mumbai-400709. PAN: AAECM3508N v. ACIT -15(2)(3), Aayakar Bhavan Maharshi Karve Road New Marine Lines, Churchgate Mumbai-400020 (Appellant) (Respondent) Assessee by : Shri Mehul Shah Department by : Shri T. Shankar Date of Hearing : 17.12.2021 Date of Pronouncement : 23.12.2021 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee requested to amend the ITAT order in ITA.No. 828/Mum/2019 (A.Y. 2010-11) dated 18.01.2021 as certain mistakes apparent on record. 2. At the time of hearing, Ld. AR brought to our notice the statement filed while filing this Miscellaneous Application are given below: - MA.No. 139/MUM/2021 Motion Drivetronics Pvt. Ltd., 2 “4. It was further mentioned by the Authorized “Representative and was also written in the submissions before your honour in paragraphs 19 to 22 as under: “19. All these submissions were submitted through e-filing process on the website of Income-tax Department to learned Commissioner of Income-tax (Appeal). 23. Learned Commissioner of Income-tax (Appeal) on one hand in his order stated that the Appellant is not serious in prosecuting this appeal as no compliance was made on behalf of the appellant; and therefore he proceeds ex-parte. 24. On the other hand in paragraph 2.3 of Appellate Order learned Commissioner of Income-tax (Appeal) states that the Appellant filed detailed submissions which are placed on record. 25. Learned Commissioner of Income-tax (Appeal) restricted the addition to 12.5% of purchases alleged to be bogus and confirmed addition of RS. 624,920 (4,999,365 * 12.5%).” 5. Therefore it was submitted by the Authorized Representative that, the order of learned Commissioner of Income-tax (Appeal) cannot be treated as an ex-parte order for reasons: a. Learned Commissioner of Income-tax (Appeal) has himself taken cognizance of the documents filed with him in paragraph 2.3 of his order (and therefore the observation of your honour in paragraph 7 page 5 of the order that “Nowhere it is mentioned in the impugned order, whether the notices sent by the Ld. CIT(A) were received by the assessee or not’ appears misconceived). b. As a matter of fact, the Authorized Representative submitted during the course of hearing that submissions were made before learned Commissioner of Income-tax (Appeal) through efiling portal; but not considered by him despite acknowledging having received; and also prayed that the case does not deserve to travel back to the file of learned Commissioner of Income-tax (Appeal). MA.No. 139/MUM/2021 Motion Drivetronics Pvt. Ltd., 3 c. By restricting the disallowance to 12.5% of alleged bogus purchases, learned Commissioner of Income-tax (Appeal) had applied his mind; and it was not an exparte order in real sense.” 3. And further he submitted that considering the fact that Ld.CIT(A) used various documents submitted before him still he treated the appeal filed before him as non-prosecution before him. Therefore, he submitted that the order passed by Ld.CIT(A) is not an exparte order and he prayed that the ITAT should have decided the issue itself instead of remitting the issue back to file of the Ld.CIT(A). In this regard he relied on the decision of the Hon'ble Jurisdictional High Court in the case of Sony Pictures Networks India penalty levied v. ITAT in Writ Petition No 3508 of 2018. 4. On the other hand, Ld. DR submitted that Ld.CIT(A) has considered the order passed by him as exparte and he has not dealt completely on merits. Therefore, he submitted that the order passed by the Tribunal is just and proper. In this regard he relied on the case of Shri Madireddy Venkat Reddy v. ACIT in M.A.No. 157/Hyd/2013 dated 23.08.2013. 5. Considered the rival submissions and material placed on record, we observe from the record that assessee has raised Ground No. 1 with MA.No. 139/MUM/2021 Motion Drivetronics Pvt. Ltd., 4 the plea that the Ld.CIT(A) erred in passing exparte order alleging no submission made without appreciating that the submissions were made on the website of the Income-tax department. Since the assessee’s original plea was the order passed by the Ld.CIT(A) is exparte order and accordingly the Tribunal has passed the order by remitting the issue back to the file of the Ld.CIT(A) to consider various documents and information submitted by the assessee with a direction to pass the order afresh after providing adequate opportunity of being heard to the assessee. Now Ld. AR tries to improvise the submissions on why the order passed by Ld.CIT(A) is not exparte order. Therefore, we do not find any reason to interfere with the order passed by the Tribunal. Accordingly, Miscellaneous Application filed by the assessee is dismissed. 6. In the result, Miscellaneous Application filed by the assessee is dismissed. Order pronounced on 23.12.2021 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board Sd/- Sd/- (VIKAS AWASTHY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 23/12/2021 Giridhar, Sr.PS MA.No. 139/MUM/2021 Motion Drivetronics Pvt. Ltd., 5 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum