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

MA 279/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6249 (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/2014 (ASSESSMENT YEAR 2008-09) M.A. NO. 279/MUM/2017 ARISING IN I.T.A. NO. 1983/MUM/2014 (ASSESSMENT 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 12.1.2018 DATE OF PRONOUNCEMENT 07 . 2 . 201 8 O R D E R PER B.R. BASKARAN (AM) :- ALL THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FIL ED BY THE ASSESSEE SEEKING RECALL OF THE ORDER DATED 21.12.2016 PASSED BY THIS BENCH IN ITA NOS. 1982/MUM/2014 TO 1985/MUM/2014. 2. THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE S UBMITTED THAT ALL THE APPEALS FILED BY THE ASSESSEE WERE BARRED BY LIMITA TION AND THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER REJECTING THE APPEALS OF THE ASSESSEE BY REFUSING TO CONDONE THE DELAY. ACCORDINGLY ALL THE APPEALS WER E DISMISSED BY THE TRIBUNAL IN LIMINE. THE LD A.R SUBMITTED THAT THE ASSESSEE H AD FILED AFFIDAVITS OF THE SHREECHAND BUILDERS & DEVELOPERS PVT. LTD. 2 ASSESSEE AND ALSO AN AFFIDAVIT OBTAINED FROM A CHAR TERED ACCOUNTANT NAMED SHRI MANOJ B. AGARWAL, WHO HAD STATED THAT 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 S HRI NIKHIL AGARWAL HAS APPEARED BEFORE THE ASSESSING OFFICER AS WELL AS BE FORE THE LEARNED CIT(A) IN THE ASSESSMENT PROCEEDINGS AND ACCORDINGLY, THE TRI BUNAL TOOK THE VIEW THAT CREDENCE COULD NOT BE GIVEN TO THE AFFIDAVIT FILED BY SHRI MANOJ BABULAL AGARWAL. FURTHER, THE TRIBUNAL ALSO DISCUSSED ABOUT CERTAIN FACTS WHICH SHOW THAT ONLY SHRI NIKHIL AGARWAL HAD APPEARED BEFORE T HE LEARNED CIT(A). IN VIEW OF THE CONTRADICTION OF FACTS AS NOTICED BY THE TRI BUNAL, IT TOOK THE VIEW THAT AVERMENTS MADE IN THE PETITION AS WELL IN THE AFFID AVIT ARE CONTRARY TO THE FACTS AVAILABLE ON RECORD AND ACCORDINGLY HELD THAT THE A SSESSEE HAS FAILED TO PROPERLY EXPLAIN REASONS FOR DELAY IN FILING THE AP PEALS. ACCORDINGLY, THE TRIBUNAL REFUSED TO CONDONE THE DELAY AND DISMISSED THE APPEALS IN LIMINE. 3. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAD E NTRUSTED WORK OF REPRESENTING HIS MATTERS TO M/S. UTTAM ABUWALA & CO MPANY, A LEADING FIRM OF CHARTERED ACCOUNTANTS. HE SUBMITTED THAT SHRI MANO J 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 SUB MITTED THAT SHRI MANOJ AGARWAL WAS AWARE OF THE FACTS RELATING TO THE ASSE SSEE AND HENCE HE HIMSELF FILED AN AFFIDAVIT NARRATING THE ACTUAL FACTS. HE S UBMITTED THAT SHRI NIKHIL AGARWAL AND SHRI MANOJ AGARWAL BELONGED TO THE SAME FIRM OF CHARTERED ACCOUNTANTS. HOWEVER, THE TRIBUNAL DID NOT APPRECI ATE THIS FACTUAL ASPECT AND DID NOT ALSO SEEK CLARIFICATION FROM THE ASSESSEE I N THIS REGARD. ACCORDINGLY, UNDER MISTAKEN FACTS, THE TRIBUNAL HAS DISMISSED TH E APPEALS IN LIMINE WITHOUT CONDONING THE DELAY. THE LEARNED AR SUBMIT TED THAT SINCE THE TRIBUNAL HAS PASSED THE ORDER UNDER MISTAKEN FACTS, THE SAME SHALL CONSTITUTE MISTAKE APPARENT FROM RECORD AND HENCE IMPUGNED ORD ER SHOULD BE RECALLED. HE SUBMITTED THAT THE ASSESSEE HAS FILED AN AFFIDAV IT OBTAINED FROM SHRI MANOJ SHREECHAND BUILDERS & DEVELOPERS PVT. LTD. 3 AGARWAL AND SHRI NIKHIL AGARWAL TO CLARIFY ITS FACT UAL POSITION. ACCORDINGLY, LEARNED THE AR PRAYED THAT THE IMPUGNED ORDER BE RE CALLED. 4. ON THE CONTRARY, LEARNED DEPARTMENTAL REPRESENTA TIVE STRONGLY OPPOSED THE PLEA OF THE ASSESSEE. 5. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THERE IS MERIT IN THE SUBMISSIONS MADE BY LEARNED AR. WE NOT ICED THAT THE TRIBUNAL HAS DISMISSED THE APPEALS OF THE ASSESSEE UNDER MIS TAKEN FACTS WITHOUT APPRECIATING THAT SHRI MANOJ AGARWAL AND SHRI NIKHI L AGARWAL BELONGED TO THE SAME FIRM OF CHARTERED ACCOUNTANT. SINCE THE IMPUGN ED ORDER HAS BEEN PASSED UNDER MISTAKEN FACTS WITHOUT SEEKING CLARIFI CATION FROM THE ASSESSEE WITH REGARD TO THE ALLEGED CONTRADICTION, WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE A PPARENT FROM RECORD. THE AGRA BENCH OF ITAT HAS HELD IN THE CASE OF DR. HARE NDRA KUMAR GUPTA VS. ITO (MA NO.26 TO 29/AGR/2009 ARISING IN ITA NO.125 TO 1 28/AGR/2003 DATED 27- 08-2010) THAT IF THE FACTS ON THE BASIS OF WHICH A DECISION IS RENDERED ITSELF ARE FOUND TO BE DIFFERENT, IN OUR OPINION, THERE IS BOU ND 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 COURSE BEFORE THE REGULAR BEN CH. ORDERED ACCORDINGLY. 6. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE ARE ALLOWED. ORDER HAS BEEN PRONOUNCED IN THE COURT ON 7.2.2 018 SD/- SD/- (RAMLAL NEGI) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 7/2/2018 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. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI