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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI G.S. PANNU, & SHRI SANDEEP SINGH KARHAIL
The present appeal has been filed by the assessee challenging the impugned order dated 03/04/2012, passed under section 250 of the Income Tax Act, 1961 ("the Act") by the learned Commissioner of Income Tax (Appeals)–7, Mumbai, [“learned CIT(A)”], for the assessment year 2005–06.
The present appeal has been listed for hearing before us pursuant to the order dated 28/09/2018, passed by the coordinate bench of the Tribunal in M/s. Taj Exim International Limited vs DCIT, M.As. no. 905 to 911/Mum./2017,
M/s. Taj Exim International Limited ITA no.6355/Mum./2012 whereby, the earlier common ex-parte order dated 01/04/2016, passed under section 254(1) of the Act was recalled and the appeal was directed to be re- fixed for hearing.
The present appeal is delayed by 46 days. The assessee along with the present appeal has filed an application seeking condonation of delay supported by an affidavit sworn by Mrs Jasbir Kaur Bakshi, Director of the assessee company. In the affidavit, it has been submitted that the husband of the deponent was the Managing Director and Chairman of the company, who expired and left his only son (who is a mentally disabled person). It is further submitted that the assessee company is near bankruptcy and bankers have lodged the matter against the company in Debt Recovery Tribunal. Thus, due to the poor financial condition of the company, the present appeal could not be filed within the limitation period. We find that in assessee’s own case in Taj Exim International Ltd vs DCIT, in ITAs No. 6351- 6354/Mum./2012, for the assessment years 2001-02 to 2004-05, also the assessee made similar submissions for seeking condonation of delay in filing the appeal before the Tribunal. We find that vide order dated 15/10/2018, the coordinate bench of the Tribunal condoned the delay in filing the aforesaid appeals. Since the basis for seeking condonation of delay is similar in the present case, therefore, in view of the above, the delay in filing the present appeal is condoned and we proceed to decide the appeal on merits.
In this appeal, the assessee has raised the following grounds:–
“1. On the facts and circumstances of the case, Hon. CIT(Appeals) erred in confirming the fact in making an addition by disallowing under section 801B of Page | 2
M/s. Taj Exim International Limited ITA no.6355/Mum./2012 the Income Tax Act, 1961 to the tune of Rs.1,22,91,555/- made by Ld. AO. Such addition is bad in law and erroneous in facts and liable to be deleted.
2. On the facts and circumstances of the case, Hon. CIT(Appeals) erred in confirming the fact in treating expenditure of Rs.4,04,932/- as capital expenditure made by Ld. AO. Such addition is bad in law and erroneous in facts and liable to be deleted.
3. On the fact and circumstances of the case, Hon. CIT(Appeals) erred in confirming the fact in treating rent receipt of Rs. 23,65,000/- as an income from other sources made by Ld. AO. Such addition is bad in law and erroneous in facts and liable to be deleted.
4. The appellant craves leave to add, amend, alter or delete all or any of the previously mentioned grounds of appeal.”
In addition to the grounds raised in the memorandum of appeal, the assessee vide application dated 18/12/2018 sought admission of the following additional ground of appeal:
“1. On the facts and circumstances of the case, Ld. CIT(A) vide his order dated 03-04-2012, erred in confirming the order dated 28-12-2007 passed by Id. AO, when that order was set aside by Id. CIT vide his order dated 27-08-2009 passed u/s 263 and thus, the order of Id. AO did not survive and hence the order of Id. CIT(A) may be vacated/set aside/cancelled."
Since, the issue raised by way of additional ground is a legal issue, which can be decided on the basis of material available on record, we are of the view that the same can be admitted for consideration and adjudication in view of the ratio laid down by the Hon’ble Supreme Court in NTPC Ltd v/s CIT: 229 ITR 383.
We have considered the submissions of both sides and perused the material available on record. The brief facts of the case as emanating from the record are that the assessee is engaged in the business of manufacture and export of garments and fabrics made on SBPF. For the year under consideration, the assessee filed its return of income on 30/10/2005 declaring Page | 3
M/s. Taj Exim International Limited ITA no.6355/Mum./2012 a total income of Rs.23,88,000. The Assessing Officer (“AO”) vide order dated 28/12/2007 passed under section 143(3) of the Act assessed the total income of the assessee at Rs.1,57,93,980, after making addition on account of disallowance under section 80IB of the Act, disallowance of expenditure incurred for the increase in share capital and addition of rental income. The learned CIT(A) vide impugned order dismissed the appeal filed by the assessee. Being aggrieved, the assessee is in appeal before us.
It is pertinent to note that during the pendency of the appeal before the learned CIT(A) against the assessment order passed under section 143(3) of the Act, the learned CIT vide revision order dated 27/08/2009 passed under section 263 set aside the assessment order passed under section 143(3) on the basis that the same is erroneous as well as prejudicial to the interest of the Revenue and directed the AO to reframe the assessment order after taking into consideration the issues raised in the revisionary proceedings. The AO vide order dated 07/12/2010 passed under section 144 r/w section 263 of the Act computed the total income of the assessee at Rs.1,65,57,780, inter-alia, after making disallowance on account of excess depreciation and income tax expenditure. The learned CIT(A) vide ex parte order dated 11/04/2019 dismissed the assessee’s appeal against the aforesaid order passed under section 144 r/w section 263 of the Act. In further appeal, the coordinate bench of the Tribunal vide consolidated order dated 14/02/2020 passed in etc., for the assessment years 2001-02 to 2009-10, inter-alia, set aside the order passed by the learned CIT(A) and remanded the matter to M/s. Taj Exim International Limited ITA no.6355/Mum./2012 the file of the AO to conclude the assessment afresh after affording opportunity to the assessee.
We are of the considered view that since the coordinate bench of the Tribunal has already directed the AO to conclude the assessment afresh, the impugned order passed by the learned CIT(A) upholding the addition originally made by the AO under section 143(3) of the Act is rendered infructuous and therefore is set aside. Since the matter has already been restored to the file of the AO for de novo assessment, the grounds raised by the assessee on merits, in the present appeal, are left open.
In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 11/05/2023