M/S ANDAZ TRADING & INFRASTRUCTURE PVT LTD,MUMBAI vs. ITO -WARD 4(1)(3), MUMBAI

3. On the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in law by failing to appreciate that an appeal once duly instituted cannot be deemed to be withdrawn in the absence of any express withdrawal application filed by the Appellant.

4. On the facts and in the circumstances of the case and in law, the Assessment Order dated 27/12/2018 passed under Section 143(3) of the Act is bad in law and liable to be quashed, as the Ld. AO erred in making the following additions/disallowances: i. Addition of Rs. 91,10,000/- under Section 43CA of the Act, ignoring the fact that the subject flat was jointly sold by the Appellant and a tenant, and the Appellant's share of area and consideration was duly disclosed; ii. Disallowance of Rs. 9,81,360/- under Section 43B of the Act, ignoring that the liability was either paid within the prescribed time or not otherwise disallowable; iii. Addition of Rs. 4,63,770/- under Section 40(a)(ia) of the Act, despite full compliance with TDS provisions and reconciliation of Form 26AS with expenses.

5. On the facts and in the circumstances of the case and in law, the Impugned Order passed by the CIT(A) is contrary to law, facts, and circumstances of the case, and therefore deserve to be set-aside.

3 ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd.

2. The assessee is a company and filed the return of income for A.Y. 2016-17 on 17.10.2016 declaring income of Rs. Nil. The case was selected for scrutiny and the statutory notices were duly served on the assessee. The assessing officer completed the assessment u/s 143(3) vide order dated 27.12.2018 wherein he made addition/ disallowances to the tune of Rs. 1,05,55,130/-. Aggrieved the assessee has filed the appeal before the Ld. CIT(A). The Ld. CIT(A) vide order dated 17.08.2020 dismissed the appeal as withdrawn stating that the assessee has opted for Vivad-Se-Vishwas Scheme (VSVS) vide declaration dated 28.01.2021. The assessee subsequently filed the appeal in form No. 35 once again before the Ld. CIT(A) on 13.09.2022. In the said appeal while quoting reasons for delay the assessee has stated that the appeal against order u/s 143(3) was not covered in the VSVS application made by assessee and the assessee opted for VSVS only for the penalty levied u/s 271D and 271E of the Act. However the Ld. CIT(A) once again dismissed the appeal of the assessee vide order dated 20.12.2022 stating that the assessee has opted for VSVS and that the appeal is dismissed as withdrawn. The assessee is in appeal before the Tribunal against the order of the Ld. CIT(A).

by the assessee on merits and has dismissed the appeal as withdrawn. The ld AR during the course of hearing submitted that assessee has not opted for VSVS for the order u/s.143(3) and since the CIT(A) has dismissed the appeal on misunderstood facts, prayed that the appeal may be remitted back to the CIT(A) for a denovo consideration. The ld DR did not raise any objection to the said prayer of the ld AR. Considering facts peculiar to the case we are of the considered view that the appeal need to be remitted back to the Ld. CIT(A) for fresh consideration of the addition/disallowances made by the AO on merits. Accordingly, the appeal is remitted back to the Ld. CIT(A) with a direction to considered the ground raised by the assessee against the order u/s 143(3) and adjudicate the ground on merits by calling from the required details to decide the case in accordance with the law. The CIT(A) is further directed to condone the delay in filing the appeal before CIT(A) in the light of the fact that the first appeal was dismissed without considering that the assessee has not opted for VSVS against order u/s.143(3). Needless to say that 5. ITA N0. 5841/Mum/2025 M/s Andaz Trading & Infrastructure Pvt Ltd. the assessee being given a reasonable opportunity to being heard. It is order accordingly.