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Income Tax Appellate Tribunal, MUMBAI BENCH “C” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAHUL CHAUDHARY
This appeal by the assessee is directed against order dated 15.03.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following grounds:
1) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the Learned A.O. of passing re-assessment order U/s. 147 of the I T Act. Reasons assigned by him for doing the same are wrong and insufficient. Appellant contends that the issuance of notice U/s.148 of the I T Act for reopening of the assessment was Pratik Bhupatrai Mehta. 2 ITA No. 2338/Mum/2023 itself itself itself illegal illegal illegal and and and unjustified unjustified unjustified and and and consequently consequently consequently the the the reassessment order so passed liable to be quashed. ssessment order so passed liable to be quashed. 2) On the facts and circumstances of the case as well as in 2) On the facts and circumstances of the case as well as in 2) On the facts and circumstances of the case as well as in law the Learned CIT(A) erred in confirming the action of the law the Learned CIT(A) erred in confirming the action of the law the Learned CIT(A) erred in confirming the action of the Learned A.O. has erred in making addition of Rs. 33,26,070 Learned A.O. has erred in making addition of Rs. 33,26,070 Learned A.O. has erred in making addition of Rs. 33,26,070 being profit shifted out and being profit shifted out and disallowing loss Rs. 1,07,66,363 disallowing loss Rs. 1,07,66,363 being loss shifted in by modifying client codes, treating the being loss shifted in by modifying client codes, treating the being loss shifted in by modifying client codes, treating the same as bogus and non genuine. same as bogus and non genuine. Reasons assigned by him for Reasons assigned by him for doing the same are wrong and insufficient. doing the same are wrong and insufficient.
3. On the facts and circumstances of the case the Ld CIT(A On the facts and circumstances of the case the Ld CIT(A On the facts and circumstances of the case the Ld CIT(A) erred in passing the order under section 250 of the Act without erred in passing the order under section 250 of the Act without erred in passing the order under section 250 of the Act without giving cognizance to the submissions made by the appellant in giving cognizance to the submissions made by the appellant in giving cognizance to the submissions made by the appellant in physical mode to the erstwhile CIT(A). physical mode to the erstwhile CIT(A).
The order passed by the Learned A.O. is devoid of any The order passed by the Learned A.O. is devoid of any The order passed by the Learned A.O. is devoid of any merit, arbitrary, uncalled for a merit, arbitrary, uncalled for and bad in law, the appellant be nd bad in law, the appellant be given such relief or relief's as prayed for. given such relief or relief's as prayed for.
At the outset, the Ld. Counsel At the outset, the Ld. Counsel for the assessee submitted that the assessee submitted that there is a delay of one day in filing this appeal for reason that there is a delay of one day in filing this appeal for reason that there is a delay of one day in filing this appeal for reason that Chartered Accountant of the assessee was busy in regulatory Chartered Accountant of the assessee was busy in regulatory Chartered Accountant of the assessee was busy in regulatory compliance. Accordingly, he submitted that delay being only for one compliance. Accordingly, he submitted that delay being only compliance. Accordingly, he submitted that delay being only day that too due to bona too due to bonafide error on the part of the authorized r on the part of the authorized representative by the assessee, so s representative by the assessee, so same might be condoned. ame might be condoned.
The Ld. Departmental Representative (DR) also did not object The Ld. Departmental Representative (DR) also did not object The Ld. Departmental Representative (DR) also did not object seriously to the request of th to the request of the assessee. In view of the bona e assessee. In view of the bonafide reason and sufficient reason and sufficient reason for delay in filing the appeal by one delay in filing the appeal by one day, delay is condoned and appeal is admitted for adjudication. condoned and appeal is admitted for adjudication. condoned and appeal is admitted for adjudication.
4. The Ld. Counsel The Ld. Counsel for the assessee further submitted that the assessee further submitted that notices issued by the Ld. CIT(A) could not be complied due to non- notices issued by the Ld. CIT(A) could not be complied due to non notices issued by the Ld. CIT(A) could not be complied due to non service at the address of the as service at the address of the assessee and therefore, the Ld. CIT(A) sessee and therefore, the Ld. CIT(A) has passed the order ex has passed the order ex-parte without adjudicating the issue in parte without adjudicating the issue in Pratik Bhupatrai Mehta. 3 ITA No. 2338/Mum/2023 dispute on merit. The Ld. Counsel further submitted that in the dispute on merit. The Ld. Counsel further submitted that in the dispute on merit. The Ld. Counsel further submitted that in the immediately preceding assessment year, the Tribunal has set aside immediately preceding assessment year, the Tribunal has set aside immediately preceding assessment year, the Tribunal has set aside the order of the Ld. CIT( the order of the Ld. CIT(A) and matter has been restored back for A) and matter has been restored back for deciding both the issue of validity of the reassessment as well as deciding both the issue of validity of the reassessment as well as deciding both the issue of validity of the reassessment as well as merit of the addition made for modification of the client code. merit of the addition made for modification of the client code. merit of the addition made for modification of the client code. Accordingly, he submitted that he submitted that in year under consideration year under consideration, also the appeal might be restored back to the file of the Ld. CIT(A) for restored back to the file of the Ld. CIT(A) for deciding afresh after considering submission of the assessee. deciding afresh after considering submission of the assessee. deciding afresh after considering submission of the assessee.
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 relevant material on record. It is dispute and perused the relevant material on record. It is dispute and perused the relevant material on record. It is undisputed that asse undisputed that assessee has not complied before the Ld. CIT(A) ssee has not complied before the Ld. CIT(A) and therefore the Ld. CIT(A) has decided the order ex-parte but not and therefore the Ld. CIT(A) has decided the order ex and therefore the Ld. CIT(A) has decided the order ex given any finding on the merit of the addition. In our opinion, in given any finding on the merit of the addition. In our opinion, given any finding on the merit of the addition. In our opinion, terms of section 250(6) of the Act, terms of section 250(6) of the Act, the Ld. CIT(A) is required to pass the Ld. CIT(A) is required to pass a reasoned order even in absence of the submission of the assessee oned order even in absence of the submission of the assessee oned order even in absence of the submission of the assessee on merit. Therefore, we feel it appropriate to set aside the orde Therefore, we feel it appropriate to set aside the orde Therefore, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore the Ld. CIT(A) and restore the issue back to the file of the Ld. CIT(A) the issue back to the file of the Ld. CIT(A) for deciding afresh after considering submission of the assessee. for deciding afresh after considering submission of t for deciding afresh after considering submission of t Before us, the Ld. Counsel of the assessee has given an undertaking Before us, the Ld. Counsel of the assessee has given Before us, the Ld. Counsel of the assessee has given that assessee shall co that assessee shall co-operate in appellate proceedings proceedings and notices issued shall be complied. Accordingly, the ground No. 3 of the issued shall be complied. Accordingly, the ground No. 3 of the issued shall be complied. Accordingly, the ground No. 3 of the appeal of the assessee is allowed. The other appeal of the assessee is allowed. The other grounds grounds on merit are accordingly rendered academic and ther accordingly rendered academic and therefore, same are not efore, same are not adjudicated upon at this stage. upon at this stage.
Pratik Bhupatrai Mehta. 4 ITA No. 2338/Mum/2023
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.