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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, JM & SHRI OM PRAKASH KANT, AM
O R D E R PER ABY T. VARKEY, JM: These are appeals preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-54, Mumbai dated 30.12.2021 for assessment year 2007-08 and AY. 2009-10 respectively.
At the outset, the Ld. AR of the assessee brought to our notice that these appeals are emanating from the order of the AO, after search and seizure operation u/s 132 of the Income Tax Act, 1961 (hereinafter “the Act”) which was carried out in the case of Samira Group on 21.03.2013. And pursuant to it, notice u/s 153C r.w.s. 144 of the Act was passed by the AO for AY. 2007-08 & AY. 2009-10. However, it was brought to our notice that the other appeals against the impugned A.Y. 2007-08 & 2009-10 M/s. Samira habitats India Ltd. action of the Ld. CIT(A) u/s 153C r.w.s. 144 of the Act for other years (i.e, AY. 2008-09, 2010-11 to 2013-14) has been remitted back to the Ld. CIT(A) for fresh adjudication, since it were exparte orders. According to the Ld. AR, even though in this case, the Ld. CIT(A) has considered the written submission filed by the assessee but could not appreciate the issues/facts in the right perspective because it couldn’t be properly explained to him the documents etc filed along with the written submission. Therefore, even though the impugned order is not technically exparte, but in substance are exparte orders; passed by Ld CIT(A) without proper application of mind; and therefore no proper opportunity assessee got before the Ld. CIT(A) and that is why assessee has raised ground no.1 wherein it has assailed the action of Ld. CIT(A) in not granting sufficient opportunity to the assessee during the First Appellate Proceedings.
We have heard both the parties and perused the records. We note that consequent to the search conducted on 21.03.2013 on Samira Group, the AO framed re-assessment for the specified six (6) assessment years u/s 153C r.w.s. 144 of the Act; and on appeal the Ld. CIT(A) has passed the impugned orders on the basis of the written statement filed by the assessee. According to the Ld. AR, all the assessments except that of AY. 2007-08 & AY. 2009-10 have been set aside back to the file of Ld. CIT(A) for fresh adjudication because the re-assessment orders were passed u/s 144 of the Act (best judgment assessment) and the Ld. CIT(A) has passed exparte orders. Before us, A.Y. 2007-08 & 2009-10 M/s. Samira habitats India Ltd. the main plea of the assessee is that even though the Ld. CIT(A) has passed the impugned order after perusal of written submission, but the fact remains that AO has passed a best judgment assessment and therefore assessee had filed documents along with written submission which the Ld. CIT(A) has not appreciated, may be due to lack of clarity or explanation on the part of assessee. Therefore, for the interest of justice and fair play, the assessee pleads that since the other appeals (AY. 2008-09, 2010-11 to 2013-14) has been remitted back to Ld. CIT(A) for fresh adjudication, these appeals also need to be adjudicated along with the other appeals since common issues are permeating in these years viz-a-vis the other years (supra). We taking into consideration the fact that the re-assessment has been framed pursuant to search operation u/s 132 of the Act, and the AO has passed the best judgment assessment, and common issues are permeating in this year and other appeals (AY. 2007-08 to AY. 2013-14), which have been restored back to the file of Ld CIT(A), we set aside the impugned order of the Ld. CIT(A) also back to the file of Ld. CIT(A) /NFAC for fresh adjudication preferably along with other appeals emanating from u/s 153C/144 of the Act wherein Tribunal in assessee’s own case (ITA. Nos. 393, 395 to 397/Mum/2022 for AYs. 2008-09, 2010-11 to 2013-14 dated 19.07.2022) ordered as under: -
1. 1. These five appeals pertain to same assessee involve a common issue arising out of materially similar set of facts and were heard together. As a matter of convenient therefore all the five appeals are being disposed of by way of this consolidated order. A.Y. 2007-08 & 2009-10 M/s. Samira habitats India Ltd.
2. These appeals call into question correctness of the ex-parte orders dated 30.12.2021 & 23.02.2022, passed by the learned CIT(A) in the matter of assessment under section 153C r.w.s 144 of the Income Tax Act, 1961, for the assessment years 2008-09, 2010-11 to 2013-14.
3. When this appeals came up for hearing learned counsel for the assessee fairly pointed out that all the impugned orders are ex-parte orders as the assessee could not participate in the proceedings before the CIT(A), on account of a very tough patch of time that the assessee was traversing through. It is pointed out that the business of the assessee had come to a virtual halt and the assessee was on the verge of closure of business. It was also pointed out, as evident from the board resolution dated 15.12.2021, that the Managing Director of the Company has resigned and an Additional Director had to be inducted to ensure smooth functioning of the company. Learned counsel for the assessee, however, assured us that in the event of the assessee being given one more opportunity of appearing before the CIT(A), the assessee will ensure scrupulous compliance with the notices of the CIT(A) and an expeditious disposal of appeals on merits. We, were thus urged to remit the matter to the file of the CIT(A) for fresh adjudication after given one more opportunity of hearing to the assessee.
4. The learned Departmental Representative, however, pointed out that the assessee has been given sufficient opportunity of hearing and yet the assessee has not availed the same. It was also pointed out that in respect of some other assessment years the assessee has duly co-operated by appearing before the CIT(A) and making details submissions. There was thus no ground for not appearing before the CIT(A) for these assessment A.Y. 2007-08 & 2009-10 M/s. Samira habitats India Ltd. years. We are thus urged to confirm the action of the CIT(A) and decline to interfere in the matter. In response to a question of the bench however, learned Departmental Representative did accept that they cannot be any objection to the matter being remitted to the file of the CIT(A) for adjudication on merits as no legitimate prejudice will be caused to the interests of the revenue by such a course of action.
5. We have heard the rival contentions, perused the material on record and duly considered the facts of the case in the light of the applicable legal position.
6. We are of the considered view that having regard to the undertaking given by the learned counsel for the assessee and having regard to the fact that the assessee was indeed traversing through a very difficult patch of time, we deem it fit and proper to remit the matter to the file of the CIT(A) for adjudication de novo on merits after given one more opportunity of the assessee, in accordance with the law and by of the speaking order. The assessee, however, is cautioned to ensure that at least this time the assessee will duly co-operate and expeditious disposal of the remanded proceedings and scrupulous comply with the notices of hearing. In view of these discussions, as also bearing in mind the entirety of the case, we deem it fit and proper to remit the matter to the file of the CIT(A) for fresh adjudication as above.”