DARSHAN SHASHIKANT MALKAN,MUMBAI vs. ITO 24(1)(5), MUMBAI

आयकर अपीलीय अिधकरण “SMC” �यायपीठ मुंबई म�। आयकर अपीलीय अिधकरण �यायपीठ मुंबई म�। आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण �यायपीठ मुंबई म�। �यायपीठ मुंबई म�। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI �ी महावीर �सह, उपा�य� के सम� । BEFORE SRI MAHAVIR SINGH, VICE PRESIDENT Aayakr ApIla saM Aayakr ApIla saM./ Aayakr ApIla saM Aayakr ApIla saM (inaQa-arNa baYa- / Assessment Year 2009-10) Darshan Shashikant Malkan The Income Tax Officer Ward-24(1)(5) 501, Purshottam, 21, J.P.Road, 939,,9th Floor, C-41 to C-43 Andheri(W) Vs. Kautilya Bhavan, G-Block, Mumbai-400 058 Bandra Kurla Complex, Pratyakshakar Bhavan, BKC, Bandra (E)-400 051 (ApIlaaqaI ApIlaaqaI ApIlaaqaI- / Appellant) ApIlaaqaI (p`%yaqaaI p`%yaqaaI p`%yaqaaI- / Respondent) p`%yaqaaI .. �थायी लेखा सं./PAN No. AFZPM6778B अपीलाथ� क� ओर से / Appellant by : None ��यथ� क� ओर से / Respondent by : Shri Vivek Perampurna, DR 27.10.2021 सुनवाई क� तारीख / Date of hearing: घोषणा क� तारीख / Date of pronouncement : 27.10.2021 AadoSa AadoSa / O R D E R AadoSa AadoSa महावीर �सह, उपा�य� के �ारा / PER MAHAVIR SINGH, VP:

This appeal of the assessee is arising out of order of the Commissioner of Income Tax (Appeals)]-36, Mumbai [in short CIT(A)], in appeal No. CIT(A)-36/IT-510/ITO-24(1)(5)/2016-17 vide dated 24.01.2020. The Assessment was framed by the Income Tax Officer, Ward-24(1)(5) Mumbai (in short ITO/ AO) for the A.Y. 2009-10 vide order dated 27.12.2016 under section 143(3) read with section 147 of the Income-tax Act, 1961 (hereinafter ‘the Act’).

Darshan Shashikant Malkan AY 09-10 from the records in adjudicating one of the grounds. For this assessee has raised following ground.

“1.On the facts and circumstances of the case and in law, the C.I.T. (Appeals) has erred in not entertaining the rectification application dated 20th December, 2018 and 3rd January, 2020 seeking rectification of mistake apparent from record since inadvertently the third ground of appeal was omitted to be mentioned in the Grounds of Appeal although at the time of the hearing, written submissions were furnished where grounds of both the additions were challenged and arguments were addressed and Paper Book was also furnished showing the Ledger Account of the Appellant in the books of India Infoline Limited along with sample contract notes of the Appellant which was inadvertently not considered by the then Commissioner of Income Tax (Appeals) and the application for rectification of mistake was rejected by his successor in office on the alleged ground that the same was never submitted nor prayed for admission.”

3. The assessee moved rectification application against the order of Ld.CIT(A) in appeal No. CIT(A)-36/IT-510/ITO- 24(1)(5)/2016-17,dated 24.09.2018 vide application letter dated 03/01/2020. In this application, the assessee stated that the decision on the third ground of the appeal, where an addition of Rs. 4,97,149/- made was not decided. The Ld.CIT(A) noted that attached grounds of appeal including third ground of appeal, which was never submitted nor prayed for admission during the appellant proceedings. According to Ld.CIT(A), there is no mistake apparent from the record in the order of Ld.CIT(A) as the assessee never prayed for admission of the third ground.

4. Now before me, none is present from assessee’s side. From revenue Shri Vivek Perampurna, Ld. Sr.DR is present. I have gone through the paper book filed by the assessee, wherein written submissions dated 25.06.2018 is attached and the relevant issue raised is as regards to second addition was in the written submission, but Ld.CIT(A) has not adjudicated the Darshan Shashikant Malkan AY 09-10 same. Even, the assessee before Ld.CIT(A) took this plea in rectification application dated 03.01.2020,but Ld.CIT(A) has not considered the same.

5. When, these facts were confronted to Ld. Sr.DR, he fairly stated that the matter can be restored back to the file of Ld.CIT(A) for adjudication of this ground. After hearing, Ld.Sr.DR and going through the facts, I feel that in the interest of justice, this issue needs adjudication. Hence, this issue is remanded back to the file of Ld.CIT(A), who will adjudicate the issue on merits. The appeal of the assessee is set aside and allowed for statistical purposes.

Order pronounced in the open court on 27 .10.2021.

Sd/- (महावीर �सह /MAHAVIR SINGH) (उपा�य� / VICE PRESIDENT) मुंबई, �दनांक/ Mumbai, Dated: 27 .10.2021 Kasarla Thirumalesh, Sr.PS अ�ेिषत/Copy of the Order forwarded to : आदेश क� आदेश क� �ितिलिप �ितिलिप अ�ेिषत आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत 1. अपीलाथ / The Appellant 2. !"यथ / The Respondent. 3. आयकर आयु$(अपील) / The CIT(A) आयकर आयु$ / CIT 4. 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड' फाईल / Guard file. आदेशानुसार/ BY ORDER, स�यािपत �ित //True Copy// आदेशानुसार आदेशानुसार आदेशानुसार

Darshan Shashikant Malkan AY 09-10 उप/सहायक सहायक पंजीकार पंजीकार (Astt. Registrar)/ व.िनजी िनजी सिचव सिचव उप उप उप सहायक सहायक पंजीकार पंजीकार िनजी िनजी सिचव सिचव (Sr.PS) अिधकरण, मुंबई / ITAT, Mumbai आयकर आयकर अपीलीय आयकर आयकर अपीलीय अपीलीय अिधकरण अपीलीय अिधकरण अिधकरण