ISLAND STAR MALL DEVELOPERS PVT. LTD,MUMBAI vs. COMMISSIONER OF INCOME TAX (APPEALS) NFAC, MUMBAI

This appeal is filed by the assessee against the order passed by the National Faceless Appeal Centre, Delhi [the learned CIT (A)] for A.Y. 2014-15 on 11th October, 20201, by which the ld CIT {A}has dismissed the appeal of the assessee filed against the order u/s 154 of the Act passed by the Dy. Commissioner of Income Tax, Central Circle 6(3)(1), Mumbai [ld AO ] holding that appeal is delayed and no condonation application is filed.

The fact of the case shows that the assessee is a Private Limited Company engaged in development of commercial, retail and entertainment complex. It is also engaged in business of rental of space and providing various services in the commercial complex. It filed its return of income on 29 September 2014 at a loss of ₹15,87,48,854/-, which was revised on 25 March 2016. The case of the assessee was picked up for scrutiny and assessment under Section 143(3) of the Income-tax Act, 1961

The assessee is engaged in letting out of space of the mall and providing various services. Assessee has following revenue streams:-

During the course of assessment proceedings, the learned Assessing Officer was of the view that the composite rent income of both the streams should be taxed under the head income from business and profession. Assessee objected to the same by submitting the agreement and stating that the assessee is the owner by title and actual possession of the construction of the plot. All the costs are capitalized and the asset was put to use during the year of transferring it to fixed assets account from capital work in progress but Assessee did not claim any depreciation on the same. Therefore, it offered the same as income from house property under Section 22 of the Act. Assessee also on its own disallowed proportionate expenditure, which is related to house property income. The common

According to the provision of Section 249(2)of the Act, the appeal to the learned CIT (A) shall be presented within 30 days from the date of service of the notice of demand relating to the assessment order. As claimed by assessee that order under Section 154 of the Act was not available on ITBA but only the tax computation sheet is available. Such order was made available to the assessee only on 28

The learned CIT (A) perused column no. 14 of form no. 35 but did not peruse the column 2(b) and (c) of the same form. Merely, based on column no. 14 of form no. 35 the appeal of assessee was considered as delayed by taking the date of the order as 9 February 2018. There was dispute that the order was passed on 9 February 2018 but received by assessee on 28 February 2019. Appeal is required to be filed within 30 days from the date of receipt of order. Therefore, appeal as claimed by the assessee is filed in time and therefore, learned CIT (A) should have perused the various columns filed in form no. 35, which is stated to be true to the best of the information of the director of the company.

The LD CIT [A] looked at the date of order i.e. 9/02/2018 , noted that appeal is filed on 28/03/2019 , in column where it is mentioned that there is no delay in filing appeal, held that appeal is delayed by 384 days , no condonation request is filed, hence, dismissed appeal.

The learned CIT (A) should have at least given an opportunity to the assessee of clarifying the above facts stated when mobile number and email address of the assessee are provided at column no. 17 of form no. 35. If one looks at the stand of the

In view of this, we set aside this appeal back to the file of the learned CIT (A) to first examine,

Accordingly, ground no. 1 of the appeal is allowed.

Other grounds of appeal are not required to be adjudicating in view of our above decision in Ground no 1.

In the Result, the appeal of the assessee is allowed for statistical purposes.