PMI ENTERTAINMENT (INDIA),MUMBAI vs. ACIT, CIR-16(1), MUMBAI

That aggrieved by the assessment order, the appeal was filed That aggrieved by the assessment order, the appeal was filed That aggrieved by the assessment order, the appeal was filed physically on 13th April 2016 with Commissioner of Income tax physically on 13th April 2016 with Commissioner of Income tax physically on 13th April 2016 with Commissioner of Income tax (Appeals) - 4 Mumbai. The E 4 Mumbai. The E-filling of the appeal was then required and filling of the appeal was then required and hence the appeal was E hence the appeal was E-filed electronically on 04/06/2016 04/06/2016 vide acknowledgement acknowledgement number 187683201040616 and in the appeal me 187683201040616 and in the appeal memo form 35 filed electronically the accountant Mr Ashok Mishra's email form 35 filed electronically the accountant Mr Ashok Mishra's email form 35 filed electronically the accountant Mr Ashok Mishra's email address ashokmishra43@gmail.com along with his telephone number address ashokmishra43@gmail.com along with his telephone number address ashokmishra43@gmail.com along with his telephone number 9821261990 was given as he was in charge of all the accounts and 9821261990 was given as he was in charge of all the accounts and 9821261990 was given as he was in charge of all the accounts and taxation related matters of the company in addition to t taxation related matters of the company in addition to the auditor and he auditor and tax consultants CA Shri Shailesh Dave. Thus the Company had filed an tax consultants CA Shri Shailesh Dave. Thus the Company had filed an tax consultants CA Shri Shailesh Dave. Thus the Company had filed an appeal with Commissioner of Income tax (Appeals) appeal with Commissioner of Income tax (Appeals) - 4 Mumbai with the 4 Mumbai with the help of CA Shri Shailesh Dave. help of CA Shri Shailesh Dave. 4. THAT after the filing of appeal physically on 13th April 2016 but 4. THAT after the filing of appeal physically on 13th April 2016 but 4. THAT after the filing of appeal physically on 13th April 2016 but ore electronically filing it on 04/06/2016 the director Shri Manish the director Shri Manish before electronically filing it on 04/06/2016 Patadia, who was running the business of the Company and Patadia, who was running the business of the Company and Patadia, who was running the business of the Company and affairs of the Company, expired on 4th May 2016. affairs of the Company, expired on 4th May 2016. 5. THAT after the filing of appeal the Chartered Accountant Shri 5. THAT after the filing of appeal the Chartered Accountant Shri 5. THAT after the filing of appeal the Chartered Accountant Shri Shailesh Dave. Pr Shailesh Dave. Proprietor of firm M/s. S.B DAVE & CO. expired oprietor of firm M/s. S.B DAVE & CO. expired on 2nd March, 2017. on 2nd March, 2017. 6. Thus after the death of director Shri Manish Patadia and also the 6. Thus after the death of director Shri Manish Patadia and also the 6. Thus after the death of director Shri Manish Patadia and also the death of Chartered Accountant Shri Shailesh Dave on 02/03/2017 death of Chartered Accountant Shri Shailesh Dave on 02/03/2017 death of Chartered Accountant Shri Shailesh Dave on 02/03/2017 (copy of death certificate attached), Mr. Ashok Mishra was (copy of death certificate attached), Mr. Ashok Mishra was (copy of death certificate attached), Mr. Ashok Mishra was in-charge of accounts, tax matters and all the communication with the income tax accounts, tax matters and all the communication with the income tax accounts, tax matters and all the communication with the income tax department. On 24th May 2017 Mr Ashok Mishra as an the accountant On 24th May 2017 Mr Ashok Mishra as an the accountant On 24th May 2017 Mr Ashok Mishra as an the accountant and authorised signatory submitted letter dated 24th May 2017 to the and authorised signatory submitted letter dated 24th May 2017 to the and authorised signatory submitted letter dated 24th May 2017 to the Commissioner of Commissioner of Income tax (Appeals) - 7 Mumbai and informed the Mumbai and informed the notice of the change of address from OLD OFFICE ADDRESS of the notice of the change of address from OLD OFFICE ADDRESS of the notice of the change of address from OLD OFFICE ADDRESS of the company as mentioned in the appeal memo in form No.35 from Kartik company as mentioned in the appeal memo in form No.35 from Kartik company as mentioned in the appeal memo in form No.35 from Kartik Complex, Opp, Laxmi Industrial Opp, Laxmi Industrial Estate, New Link Road, Andheri (W), Estate, New Link Road, Andheri (W), Mumbai - 400053 to NEW OFFICE ADDRE 400053 to NEW OFFICE ADDRESS 55A Silver Astra, J. B. SS 55A Silver Astra, J. B. Nagar, Andheri East, Mumbai Nagar, Andheri East, Mumbai - 400059. It is not within my knowledge 400059. It is not within my knowledge why the notice of change of address was submitted to Commissioner of why the notice of change of address was submitted to Commissioner of why the notice of change of address was submitted to Commissioner of Income tax (Appeals) Income tax (Appeals) - 7 Mumbai, instead of CIT (Appeals) 7 Mumbai, instead of CIT (Appeals)-4, Mumbai. (copy attached). (copy attached). 7. That the change of address was wrongly submitted on 24th March, t the change of address was wrongly submitted on 24th March, t the change of address was wrongly submitted on 24th March, 2017 to CIT (Appeals) CIT (Appeals)-7 by Mr Ashok Mishra instead of submitting to 7 by Mr Ashok Mishra instead of submitting to CIT (Appeals)-4, Mumbai with whom the Appeal was filed. On realising 4, Mumbai with whom the Appeal was filed. On realising 4, Mumbai with whom the Appeal was filed. On realising the error and to rectify the same another notice of change the error and to rectify the same another notice of change the error and to rectify the same another notice of change of address was submitted to CIT (Appeals) was submitted to CIT (Appeals)-4, Mumbai, on 9th January, 2018 vide 4, Mumbai, on 9th January, 2018 vide letter letter letter dated dated dated 8th 8th 8th January, January, January, 2018 2018 2018 with with with attachment attachment attachment of of of e-filing e e acknowledgement of appeal to CIT(Appeals) acknowledgement of appeal to CIT(Appeals)-4, Mumbai, notifying also 4, Mumbai, notifying also the telephone number and email address of the dir the telephone number and email address of the director Mr Ajay ector Mr Ajay Patadia (copy attached). Patadia (copy attached). 8. THAT for the assessment year 2009 THAT for the assessment year 2009-10 CA Bharat Kanabar filed 10 CA Bharat Kanabar filed appeal in Form no 35 against the assessment order on 24th April, 2023. appeal in Form no 35 against the assessment order on 24th April, 2023. appeal in Form no 35 against the assessment order on 24th April, 2023. After filing of appeal for assessment year 2009 After filing of appeal for assessment year 2009-10, on 25th April, 2023 10, on 25th April, 2023 it came to the notice of CA Bharat Kanabar from the Income Tax portal the notice of CA Bharat Kanabar from the Income Tax portal the notice of CA Bharat Kanabar from the Income Tax portal

That It is evident from the order under section 250 issued by the 13. That It is evident from the order under section 250 issued by the 13. That It is evident from the order under section 250 issued by the respected CIT (A) CIT (A) -4 Mumbai that the aforesaid disallowance which was aforesaid disallowance which was contested for Rs. 1,20,82,470 has been wrongly confirmed and he contested for Rs. 1,20,82,470 has been wrongly confirmed and he contested for Rs. 1,20,82,470 has been wrongly confirmed and he hurriedly passed ex hurriedly passed ex-parte order dated 20/06/2017. It is evident from parte order dated 20/06/2017. It is evident from the ex-parte order of the CIT parte order of the CIT Appeals dated 20/06/2017 that the order Appeals dated 20/06/2017 that the order was passed in haste was passed in haste without giving proper notice as also not following without giving proper notice as also not following the principles of natural justice by making huge disallowance of Rs. the principles of natural justice by making huge disallowance of Rs. the principles of natural justice by making huge disallowance of Rs. 1,20,82,470. 14. THAT in view of the aforesaid reasons the filing of the appeal is 14. THAT in view of the aforesaid reasons the filing of the appeal is 14. THAT in view of the aforesaid reasons the filing of the appeal is delayed by approximately 2100 days from the passage o delayed by approximately 2100 days from the passage o delayed by approximately 2100 days from the passage of order but within 60 days of the receipt of the order. It is presumed that the order within 60 days of the receipt of the order. It is presumed that the order within 60 days of the receipt of the order. It is presumed that the order has been served at the wrong address but not through email to the has been served at the wrong address but not through email to the has been served at the wrong address but not through email to the appellant as the appellant do not have date of physically service of the appellant as the appellant do not have date of physically service of the appellant as the appellant do not have date of physically service of the order and the order passed elec order and the order passed electronically has come to the notice of the tronically has come to the notice of the appellant on 25/04/2023. appellant on 25/04/2023. 15. THAT the appellant pray to this H'ble Bench of the Tribunal to 15. THAT the appellant pray to this H'ble Bench of the Tribunal to 15. THAT the appellant pray to this H'ble Bench of the Tribunal to condone the delay and admit the present appeal, ignoring the condone the delay and admit the present appeal, ignoring the condone the delay and admit the present appeal, ignoring the technicality and considering the substantial justice, as the d technicality and considering the substantial justice, as the d technicality and considering the substantial justice, as the delay is not caused by the negligence of the appellant. caused by the negligence of the appellant. 16. THAT if the application of the appellant for condoning the delay is 16. THAT if the application of the appellant for condoning the delay is 16. THAT if the application of the appellant for condoning the delay is rejected, it would amount to legalise injustice on technical ground when rejected, it would amount to legalise injustice on technical ground when rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do the Tribunal is capable of removing injustice and to do justice. If the justice. If the delay is not condoned, it would amount to legalising an illegal order delay is not condoned, it would amount to legalising an illegal order delay is not condoned, it would amount to legalising an illegal order which would result in unjust enrichment on the part of the State. which would result in unjust enrichment on the part of the State. which would result in unjust enrichment on the part of the State.” 3. We find that delay in filing the appeal has been caused due We find that delay in filing the appeal has been caused due We find that delay in filing the appeal has been caused due death of the Director of the assessee co death of the Director of the assessee company as well as death of mpany as well as death of the Chartered Accountant who was dealing the matter of the the Chartered Accountant who was dealing the matter of the the Chartered Accountant who was dealing the matter of the assessee company. Further, the delay has also been due to assessee company. Further, the delay has also been due assessee company. Further, the delay has also been due furnishing details of change of address to the wrong appellate furnishing details of change of address to the wrong furnishing details of change of address to the wrong authority i.e. Commissioner of Income Commissioner of Income-tax (Appeals tax (Appeals) by the accountant of the assessee company. In the circumstances, we are accountant of the assessee company. In the circumstances, we are accountant of the assessee company. In the circumstances, we are of the opinion that there is a sufficient and bona fide reason for of the opinion that there is a sufficient and bona fide reason for of the opinion that there is a sufficient and bona fide reason for filing the appeal with a delay of 2100 days. We are of the view that filing the appeal with a delay of 2100 days. We are of the view that filing the appeal with a delay of 2100 days. We are of the view that assessee has not benefiting in any manner by assessee has not benefiting in any manner by delaying ying the appeal.

Before us, the Ld. Counsel Before us, the Ld. Counsel for the assessee referred to Ground the assessee referred to Ground No. 1 of the appeal and submitted that due No. 1 of the appeal and submitted that due to reasons m reasons mentioned in the application for condonation of the appeal i.e. the application for condonation of the appeal i.e. (i) (i) due to death of the Director and Chartered Accountant dealing with the matter of the Director and Chartered Accountant dealing with the matter of the Director and Chartered Accountant dealing with the matter of the assessee company the assessee company (ii) due to submission of the change of the of the change of the address to wrong destination by the account address to wrong destination by the accountant ant , the assessee could not represent could not represent before the Ld. CIT(A) and therefore, he before the Ld. CIT(A) and therefore, he submitted that order of the Ld. CIT(A) may be restored back for submitted that order of the Ld. CIT(A) may be restored back for submitted that order of the Ld. CIT(A) may be restored back for deciding afresh.

We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in We have heard rival submission of the parties on the issue in dispute and perused the releva dispute and perused the relevant material on record. The assessee nt material on record. The assessee before us has submitted that due the death of the Director and also before us has submitted that due the death of the Director and also before us has submitted that due the death of the Director and also the death of the Chartered Accountant who was dealing with the the death of the Chartered Accountant who was dealing with the the death of the Chartered Accountant who was dealing with the company’s financial matters and also due to letter of change of company’s financial matters and also due to letter of change of company’s financial matters and also due to letter of change of address submitted to Comm address submitted to Commissioner (Appeals)-7, 7, instead to the Commissioner (Appeals) Commissioner (Appeals)-4 by the accountant, no representation no representation could be made before the Ld. CIT(A). In our opinion, the assessee is could be made before the Ld. CIT(A). In our opinion, the assessee is could be made before the Ld. CIT(A). In our opinion, the assessee is prevented by sufficient reason in prevented by sufficient reason in non representing before the Ld. representing before the Ld. CIT(A). The Ld. CIT(A) CIT(A). The Ld. CIT(A) has passed the impugned order without has passed the impugned order without taking into consideration submission of the assessee. Before us, the taking into consideration submission of the assessee. Before us, the taking into consideration submission of the assessee. Before us, the Ld. Counsel for the assessee the assessee has given undertaking that he given undertaking that he shoud comply all the notices issued by the Ld. CIT(A). In view of the above comply all the notices issued by the Ld. CIT(A). In view of the above comply all the notices issued by the Ld. CIT(A). In view of the above

In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes.