ACIT 22(2), MUMBAI V. M/S.M.L.REALTY, MUMBAI

MA 612/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7530 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KESHAV B BHUJLE
• Section: 143(3); 254(2); 147; 148

Judgement Text

1 MA NO.612/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.612 /MUM/2019 (ARISING OUT OF ITA NO.795/MUM/2019) (ASSESSMENT YEAR: 2009-10) & ACIT - 22(2) ROOM NO.315, PIRAMAL CHAMBER MUMBAI-400 012 VS M.L. REALTY 441A, 4 TH FLOOR SUNDER VILLA, S.V.ROAD SANTACRUZ(W) MUMBAI-400 054 PAN NO:AAQFM3360H APPLICANT RESPONDENT APPLICANT BY MS. JOTHILAKSHMI NAYAK, SR.DR RESPONDENT BY SHRI KESHAV B. BHUJLE, AR DATE OF HEARING 13/03/2020 DATE OF PRONOUNCEMENT 19 /03/2020 O R D ER PER G MANJUNATHA: AM THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATIO N U/S 254(2) OF THE I.T.ACT, 1961 AGAINST ORDER OF THE TRIBUNAL, DA TED 17/05/2019 IN ITA NO.795/MUM/2019 FOR THE ASST.YEAR 2009-10. 2. THE REVENUE HAS NARRATED FACTS AND MISTAKES STAT ED TO BE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL. TH E RELEVANT CONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARE REPRODUCED AS UNDER:- 2 MA NO.612/MUM/2019 1. THE HONBLE INCOME TAX APPELLATE TRIBUNAL, MUMBA I BENCH 'D', MUMBAI, WAS PLEASED TO PASS AN ORDER IN THE ABOVE MENTIONED CASE ON 17.05.2019 IN ITA NO. 795/MUM/2019 FOR THE ASSESSMENT YEAR 2009-1 0. THE APPEAL WAS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY C OMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI DATED 23.02.2017. THE APPE AL WAS FILED BY THE ASSESSEE FOR A.Y. 2009-10. THE HON'BLE ITAT 'D', BENCH, MUMBAI IN ITS ORDER DA TED 17.05.2019 FOR A.Y. 2009-10 DECIDED THE APPEAL IN FAVOUR OF ASSESSEE AN D PASSED THE ORDER. THE ORDER HAS BEEN RECEIVED IN PR. CIT-22, MUMBAI OFFIC E ON 10.07.2019 (A COPY OF PROOF IS ENCLOSED). IN THIS CASE, THE ASSESSEE WENT IN APPEAL BEFORE TH E HON'BLE ITAT AND CONTENDED THAT THE AO HAS WRONGLY SENT THE NOTICE U /S 148 TO THE WRONG C- MAIL ID [e-mail]. IT IS POINTED OUT THAT THE NOTICE ON THE WRONG E- MAIL ID WAS MISTAKENLY SENT ON 31.03.2016 AT 9.50 P .M. HOWEVER, THE AO SOON REALIZED THE MISTAKE AND PROMPTLY SENT E- MAILS ON BOTH THE CORRECT E-MAIL IDS [e-mail] AND [e-mail] PROVIDED BY THE ASSESSEE IN HIS RETURN AT 9.59 P.M. AND 10 P.M. ON 31.03.201 6. (COPY ENCLOSED). THE E- MAILS WERE PROPERLY DELIVERED IN TIME AND HENCE NOT ICE WAS DULY SERVED. THIS FACT HAS NOT BEEN BROUGHT TO THE NOTICE OF HON'BLE ITAT DURING PROCEEDINGS WHICH GAVE DECISION IN FAVOUR OF THE ASSESSEE ON TH E VERY GROUND OF NON SERVICE OF NOTICE U/S 148. IN THE SAID ORDER, HON'BLE JTAT PASSED THE DETAILED ORDER FOR A.Y. 2009-10 IN ITA NO. 795/MUM/2019 AND STATED IN PARA NO.15 PAGE 27 AS UNDER: ' 75. IN THIS VIEW OF THE MATTER AND CONSIDERING TH E FACTS AND CIRCUMSTANCES OF HIS CASE WE ARE OF THE CONSIDERED VIEW THAT NOTICE REQUIRED TO BE ISSUED U/S 148 OF THE ACT AS PRESCRIBED UNDER PROVISIONS OF SECTION 149 HAS NOT BEEN COMPLIED WITH BY THE AO BEFORE TAKING UP RE-ASSESSMENT PROCEEDINGS. NON SERVICE OF NOTICE U/S 148 IS A SER IOUS MISTAKE BECAUSE UNLESS THE NOTICE REQUIRED TO BE SERVED U/S 148 IS SERVED ON THE ASSESSEE AS PER THE PROVISION OF THE ACT, THEN THE AO CANNOT TAKE UP FURTHER PROCEEDINGS UNDER THE ACT, INCLUDING RE-ASSESSMENT ORDER U/S 147 OF THE ACT. THEREFORE WE ARE OF THE CONSIDERED VIES THAT T HERE IS MERIT IN LEGAL GROUND TAKEN BY THE ASSESSEE CHALLENGING NON-SERVIC E OF NOTICE U/S 148 OF THE ACT, HENCE, WE QUASHED RE-ASSESSMENT ORDER PASS ED BY THE AO U/S 147 RWS 143(3) OF THE IT ACT, CONSEQUENT TO NON SERVICE /IMPROPER SERVICE OF NOTICE U/S 148 OF THE ACT.' THE ITAT IS THE HIGHEST FACT FINDING AUTHORITY AND IN THIS CASE THEY HAVE ADJUDICATED THE CASE WITHOUT CORRECT FACT BEING BRO UGHT ON RECORD THAT THE NOTICE WAS SENT & DELIVERED ON THE ASSESSEE'S CORRE CT E- MAIL ID ALSO. IN ORDER TO BE ABLE TO BRING CORRECT FACTS TO THE N OTICE OF THE HON'BLE ITAT, IT IS HUMBLE PRAYED THAT THE HON'BLE ITAT MAY RECALL ITS INSTANT ORDER DATED 17.05.2019 AND DECIDE THE MATTER AFRESH. 3 MA NO.612/MUM/2019 3. THE LD. DR PRESENT FOR THE REVENUE, AT THE TIME OF HEARING REFERRING TO A LETTER OF THE LD. AO, DATED 03/02/20 20 SUBMITTED THAT CERTAIN FACTS WERE NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL, INSOFAR AS, SERVICE OF NOTICE REQUIRED TO BE ISSUED U/S 148 OF THE I.T.ACT, 1961 THROUGH E-MAIL, WHICH RESULTED IN QUASHING THE ASS ESSMENT ORDER PASSED BY THE LD. AO U/S 143(3) R.W.S. 147 OF THE I .T.ACT, 1961 FOR NON SERVICE OF NOTICE WITHIN THE PRESCRIBED TIME ALLOWE D UNDER THE ACT. THE LD. DR, FURTHER SUBMITTED THAT THE ITAT HAS QUASHED THE ASSESSMENT ORDER FOR NON SERVICE OF NOTICE PRIMARILY ON THE GR OUND THAT THE NOTICE STATED TO BE ISSUED ON 31/03/2016 TO E-MAIL ID SPEC IFIED BY THE LD. AO WAS NOT SERVED. BUT, FACT REMAINS THAT ALTHOUGH, TH E INITIAL NOTICE SERVED ON E-MAIL ID [e-mail] WAS NOT SERVED, BUT THE LD. AO HAS SENT FURTHER E-MAIL TO TWO E-MAIL IDS PROVID ED BY THE ASSESSEE IN THE LATEST RETURN FILED FOR THE AY 2015-16, WHICH H AS BEEN SERVED. THIS FACT HAS NOT BEEN BROUGHT TO THE NOTICE OF THE TRIB UNAL, AT THE TIME OF HEARING, WHICH RESULTED IN ALLOWING THE APPEAL FILE D BY THE ASSESSEE, ON THE ISSUE OF NON SERVICE OF NOTICE. THEREFORE, IN O RDER TO BRING CORRECT FACTS TO THE NOTICE OF THE ITAT, IT IS HUMBLY PRAY THAT THE ITAT MAY RECALL ITS ORDER, DATED 17/05/2019 AND DECIDE THE MATTER I N ACCORDANCE WITH LAW. 4. THE LD. AR FOR THE ASSESSEE, ON THE OTHER HAND S UBMITTED THAT THERE IS NO MISTAKES IN THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1961, WHICH IS EVIDENT F ROM THE FACT THAT THE REVENUE IN ITS MISCELLANEOUS APPLICATION HAS CATEGO RICALLY STATED THAT THE FACTS BROUGHT OUT THEREIN WAS NOT BROUGHT TO THE NO TICE OF THE TRIBUNAL, AT THE TIME OF HEARING. THEREFORE, IT IS VERY CLEAR TH AT THE REVENUE IS TRYING TO RECALL THE ORDER OF THE TRIBUNAL, ON THE BASIS OF N EW FACTS, WHICH WERE NOT 4 MA NO.612/MUM/2019 AVAILABLE AT THE TIME OF HEARING OF APPEAL AND HENC E, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1 961. HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED CO NTENTS OF MISCELLANEOUS APPLICATION FILED BY THE REVENUE, IN LIGHT OF ORDER OF THE TRIBUNAL, DATED 17/05/2019 IN ITA NO.795/MUM/2019. WE FIND THAT THE TRIBUNAL HAS QUASHED REASSESSMENT ORDER PASSED BY T HE LD. AO U/S 143(3) R.W.S. 147 OF THE I.T.ACT, 1961 FOR NON SERV ICE OF STATUTORY NOTICE REQUIRED TO BE ISSUED U/S 148 OF THE I.T.ACT, 1961 WITHIN THE TIME ALLOWED UNDER THE ACT, ON THE BASIS OF FACTS BROUGHT OUT BY THE LD. COUNSEL FOR THE ASSESSEE AND THE REVENUE AND ON THE BASIS OF FA CTS AVAILABLE ON RECORD, IT WAS HELD THAT THE NOTICE CLAIMED TO HAVE SENT ON E-MAIL ID [e-mail] WAS NOT SERVED ON THE ASSESSEE. WE, FURTHER NOTED THAT NOW, THE REVENUE HAS BROUGHT OUT NEW FAC TS IN ITS MISCELLANEOUS APPLICATION AND CLAIMS THAT ALTHOUGH, INITIAL E-MAIL SENT TO [e-mail] WAS BOUNCED BACK, BUT LATER THE LD. AO HAS SENT TWO E-MAILS TO LATEST E-MAIL ID GIVEN BY THE A SSESSEE IN THE RETURN OF INCOME FILED FOR ASST.YEAR 2015-16, AS PER WHICH TH E LATEST AVAILABLE E- MAIL ID WAS [e-mail] AND [e-mail] AND SAID E-MAIL WAS SERVED ON THE ASSESSEE, FOR WHICH N ECESSARY REPORTS TAKEN FROM THE WEBSITE HAS BEEN ENCLOSED ALONG WITH ITR ACKNOWLEDGMENT COPIES FOR ASST.YEAR 2014-15 & 2015 -16. FROM THE ABOVE, IT IS VERY CLEAR THAT AT THE TIME OF DISPOSA L OF APPEAL BY THE TRIBUNAL, THE FACT OF SERVICE OF NOTICE THROUGH E-M AIL IDS [e-mail] AND [e-mail] WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. FURTHER, AS ADMITTED BY THE LD. AO IN HIS LETTER, DATED 03/02/2020, WHEN INITIAL E-MAIL WAS BOUNCED BACK, HE HAD 5 MA NO.612/MUM/2019 SENT FRESH E-MAILS TO E-MAIL ID [e-mail] AND [e-mail] AND CLAIMED THAT BOTH E-MAILS WERE SUCCESSFULLY DELIVERED TO THE ASSESSEE. WE FIND THAT FIRST OF AL L, E-MAIL SENT TO [e-mail] WAS BOUNCED BACK, AS PER ADMISSION OF THE LD. AO. AS REGARDS, E-MAIL SENT TO OTHER TWO E-MAI L IDS, WE FIND THAT THE LD. AO HAS SENT E-MAIL TO E-MAIL IDS [e-mail] AND [e-mail] . THE ASSESSEE HAS DENIED THAT, IT HAD ANY E-MAIL ID IN THE NAME OF [e-mail] AND THIS FACT HAS BEEN CONFIRMED FROM THE RETURNS FILED FOR ASST.YEAR 2013 -14 TO 2015-16, AS PER WHICH THE CORRECT E-MAIL ID MENTIONED THEREIN W AS [e-mail] AND TO THIS EXTENT, THE CLAIM OF THE LD. AO IS INCORRECT. AS REGARDS E-MAIL SENT TO [e-mail] , WE FIND THAT ALTHOUGH, THE LD. AO CLAIMS TO HAVE SENT E-MAIL TO SAID ID, BUT DID NOT EXPLAIN, HOW HE GOT E-MAIL ID [e-mail] , BECAUSE THE SAID E- MAL ID WAS NEITHER, REPORTED BY THE ASSESSEE IN THE RETURN OF INCOME FILED FOR ASST.YEAR 2009-10, NOR WAS RECORDED IN RETURNS FILED FOR THE ASST.YEAR 2013-14 TO 2015-16. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MERIT IN THE CONTENTIONS RAISED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION, INSOFAR AS, SERVICE OF N OTICE THROUGH E-MAIL. WE, FURTHER NOTED THAT ASSUMING FOR A MOMENT, BUT N OT ACCEPTING, THE LD. AO HAS SENT E-MAIL TO THE ASSESSEE ON 31/03/2016 TO TWO E-MAIL IDS I.E [e-mail] AND [e-mail] , BUT SAID E-MAIL IDS ARE NOT CORRECT E-MAIL ID REPORTED IN THE RETU RN OF INCOME FILED FOR THE YEAR AND ACCORDINGLY, EVEN IF E-MAILS WERE SENT TO THOSE E-MAIL ID, IT CANNOT BE SAID THAT THE NOTICE REQUIRED TO BE SERVE D IN ELECTRONIC MODE, AS PROVIDED UNDER RULE 127 OF I.T.RULES, 1962 HAS B EEN SERVED. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MERIT IN MISCELLANEOUS APPLICATION FILED BY THE REVENUE TO R ECALL ORDER OF THE 6 MA NO.612/MUM/2019 TRIBUNAL AND ACCORDINGLY, THE MISCELLANEOUS APPLICA TION FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 .03.2020 SD/- SD/- SAKTIJIT DEY G M ANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 19.03.2020 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//