SHREECHAND BUILDERS AND DEVELOPERS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 9 (3) (1) , MUMBAI

MA 278/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6248 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) M.A. NO. 278/MUM/2017 ARISING IN I.T.A. NO. 1982 /MUM/20 14 (ASSESSMENT YEAR 20 08 - 09 ) M.A. NO. 279/MUM/2017 ARISING IN I.T.A. NO. 1983/MUM/2014 (ASS ESSMENT YEAR 2008 - 09) M.A. NO. 280/MUM/2017 ARISING IN I.T.A. NO. 1984/MUM/2014 (ASSESSMENT YEAR 2008 - 09) M.A. NO. 281/MUM/2017 ARISING IN I.T.A. NO. 1985/MUM/2014 (ASSESSMENT YEAR 2008 - 09) SHREECHAND BUILDERS & DEVELOPERS P. LTD. B - 205 , VISHAL - 3 NEAR SONIWADI, SHIMPOLI ROAD, BORIWALI WEST MUMBAI - 400 092. PAN NO.AAFCS8459R VS. ITO - 9(3)(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI PIN 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI VIMAL PUNAMIYA DEPARTMENT BY S HRI RAM TIWARI DATE OF HEARING 12 .1 . 201 8 DATE OF PRONOUNCEMENT 07 . 2 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - ALL THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE SEEKING RECALL OF THE ORDER DATED 21.12.2016 PASSED BY THIS BENCH IN ITA NO S . 1982/MUM/2014 TO 1985 /MUM/2014. 2. THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT ALL THE APPEALS FILED BY THE ASSESSEE WERE B A RR E D BY LIMITATION AND THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER REJECTING THE APPEALS OF THE ASSESSEE BY REFUSING TO CONDONE THE DEL AY . A CCORDINGLY ALL THE APPEALS WERE DISMISSED BY THE TRIBUNAL IN LIMINE. THE LD A.R SUBMITTED THAT THE ASSESSEE HAD FILED AFFIDAVIT S OF THE SHREECHAND BUILDERS & DEVELOPERS PVT. LTD. 2 ASSESSEE AND ALSO AN AFFIDAVIT OBTAINED FROM A CHARTERED ACCOUNTANT NAMED SHRI MANOJ B. AGARWAL, WHO HAD STATED TH AT THE FILE S AND RECORD OF THE ASSESSEE WERE MISPLACED AND HENCE HE COULD NOT FILE THE APPEAL IN TIME. HOWEVER, THE TRIBUNAL NOTICED THAT A PERSON NAMED SHRI NIKHIL AGARWAL HAS APPEARED BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LEARNED CIT(A) IN T HE ASSESSMENT PROCEEDINGS AND ACCORDINGLY, THE TRIBUNAL TOOK THE VIEW THAT CREDENCE COULD NOT BE GIVEN TO THE AFFIDAVIT FILED BY SHRI MANOJ B ABULAL AGARWAL. FURTHER, THE TRIBUNAL ALSO DISCUSSED ABOUT CERTAIN FACTS WHICH SHOW THAT ONLY SHRI NIKHIL AGARWAL H AD APPEARED BEFORE THE LEARNED CIT(A). IN VIEW OF THE CONTRADICTION OF FACTS AS NOTICED BY THE TRIBUNAL , IT TOOK THE VIEW THAT AVERMENT S MADE IN THE PETITION AS WELL IN THE AFFIDAVIT ARE CONTRARY TO THE FACTS AVAILABLE ON RECORD AND ACCORDINGLY HELD THAT THE ASSESSEE HAS FAILED TO PROPERLY EXPLAIN REASONS FOR DELAY IN FILING THE APPEALS. ACCORDINGLY, THE TRIBUNAL REFUSED TO CONDONE THE DELAY AND DISMISSED THE APPEALS IN LIMINE. 3. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAD ENTRUSTED WORK OF REPRESENTI NG HIS MATTER S TO M/S. UTTAM ABUWALA & COMPANY , A LEADING FIRM OF CHARTERED ACCOUNTANTS . HE SUBMITTED THAT SHRI MANOJ BABULAL AGARWAL, WHO HAD FILED AN AFFIDAVIT EARLIER , WAS A PARTNER OF M/S. UTTAM ABUWALA & CO. AND HE HAS ENTRUSTED WORK OF REPRESENTING THE MATTER OF THE ASSESSEE TO ITS ASSOCIATE, SHRI NIKHIL AGARWAL. THE LEARNED AR SUBMITTED THAT SHRI MANOJ AGARWAL WAS AWARE OF THE FACTS RELATING TO THE ASSESSEE AND HENCE HE HIMSELF FILED AN AFFIDAVIT NARRATING THE ACTUAL FACTS. HE SUBMITTED THAT SHRI N IKHIL AGARWAL AND SHRI MANOJ AGARWAL BELONGED TO THE SAME FIRM OF CHARTERED ACCOUNTANT S. HOWEVER, THE TRIBUNAL DID NOT APPRECIATE THIS FACTUAL ASPECT AND DID NOT ALSO SEEK CLARIFICATION FROM THE ASSESSEE IN THIS REGARD. ACCORDINGLY, UNDER MISTAKEN FACTS, THE TRIBUNAL HAS DISMISSED THE APPEALS IN LIMINE WITHOUT CONDONING THE DELAY . THE LEARNED AR SUBMITTED THAT SINCE THE TRIBUNAL HAS PASSED THE ORDER UNDER MISTAKEN FACTS , THE SAME SHALL CONSTITUTE MISTAKE APPARENT FROM RECORD AND HENCE IMPUGNED ORDER SHOU LD BE RECALLED . HE SUBMITTED THAT THE ASSESSEE HAS FILED AN AFFIDAVIT OBTAINED FROM SHRI MANOJ SHREECHAND BUILDERS & DEVELOPERS PVT. LTD. 3 AGARWAL AND SHRI NIKHIL AGARWAL TO CLARIFY ITS FACTUAL POSITION. ACCORDINGLY, LEARNED THE AR PRAYED THAT THE IMPUGNED ORDER BE RECALLED. 4. ON THE CONTRARY, LE ARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED THE PLEA OF THE ASSESSEE. 5. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMISSIONS MADE BY LEARNED AR. WE NOTICED THAT THE TRIBUNAL HAS DISMISSED THE APPEALS OF THE ASSESSEE UNDER MISTAKEN FACTS WITHOUT APPRECIATING THAT SHRI MANOJ AGARWAL AND SHRI NIKHIL AGARWAL BELONGED TO THE SAME FIRM OF CHARTERED ACCOUNTANT. SINCE THE IMPUGNED ORDER HAS BEEN PASSED UNDER MISTAKEN FACTS WITHOUT SEEKING CLARIFICATION FROM THE ASSE SSEE WITH REGARD TO THE ALLEGED CONTRADICTION, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD. THE AGRA BENCH OF ITAT HAS HELD IN THE CASE OF DR. HARENDRA KUMAR GUPTA VS. ITO (MA NO.26 TO 29/AGR /2009 ARISING IN ITA NO.125 TO 128/AGR/2003 DATED 27 - 08 - 2010) THAT I F THE FACTS ON THE BASIS OF WHICH A DECISION IS RENDERED ITSELF ARE FOUND TO BE DIFFERENT, IN OUR OPINION , THERE IS BOUND TO BE A MISTAKE APPARENT ON RECORD AND THE PROVISIONS OF SECTION 254(2) ARE CLEARLY APPLICABLE. ACCORDINGLY, WE RECALL THE IMPUGNED ORDER DATED 21.12.2016 PASSED IN THE APPEALS CITED ABOVE AND DIRECT THE REGISTRY TO POST THESE APPEALS FOR FRESH HEARING IN THE NORMAL CO URSE BEFORE THE REGULAR BENCH. ORDER ED ACCORDINGLY. 6. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 7 . 2 .201 8 SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKA RAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 7 / 2 / 20 1 8 COPY OF THE ORDER FORWARDED TO : SHREECHAND BUILDERS & DEVELOPERS PVT. LTD. 4 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. D R, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBA I