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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI B.R.BASKARAN, AM & SHRI AMARJIT SINGH, JM
Assessee by: Shri Firoze B. Andhyarujina & Satish Kanodia Department by: Shri A.K.Nayak सुनवाई क� तार�ख / Date of Hearing: 05.04.2016 घोषणा क� तार�ख /Date of Pronouncement: 13.07.2016 आदेश / O R D E R PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 16.12.2013 passed by the Commissioner of Income Tax (Appeal) 15, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2008-09.
ITA No.1420/Mum/14 A.Y.2008-09
The assessee has raised the following grounds:-
1. erred in coming to the conclusion that no proper reason was submitted for filing the appeal late in as much as he failed to appreciate that intimation of appointment of Liquidator was filed with the Assessing Officer as per section 178(1); 2. failed to appreciate that originally the appeal was filed in time, however the same was withdrawn and fresh appeal filed after giving notice of the appointment of Liquidator; 3. failed to appreciate that the original appeal before CIT(A) was signed by Liquidator though no intimation was given formally which was subsequently given and which is only a matter of procedure; 4. failed to appreciate that appeal is a matter of right and the relief on important legal issues and has no gone into merits of the case but dismissed merely on technical and procedural grounds;
3. The brief facts of the case are that the assessee M/s. Star Cruises (India) Pvt. Ltd. filed its E-return of income declaring income of Rs. Nil on 30.09.2008. Subsequently the assessee filed the hard copy of the E-return of income along with Tax Audit Report, Audited Profit and Loss Account, Balance Sheet and other details. The return was processed u/s.143(1) of the Income Tax Act, 1961 ( in short “the Act”) on 12.09.2009. Subsequently, the case was taken up for scrutiny under CASS and notice u/s.143(2) of the Act dated 19.08.2009 was issued and duly served upon the assessee. In this case, a reference u/s.92CA(1) of the Act was referred to the Transfer Pricing Officer. Subsequently, a notice u/s.142(1) dated 16.04.2010
ITA No.1420/Mum/14 A.Y.2008-09 was issued and served upon the assessee. Thereafter, on the matter of Transfer Pricing issue, the income of the assessee was assessed to the tune of Rs.1,58,89,470/- by virtue of order dated 21.12.2011. Subsequently, assessee filed an appeal against this order dated 20.01.2012 which was withdrawn by the assessee by virtue of order dated 22.10.2012. The assessee withdrawn the appeal before the CIT(A) on the ground of that there is a technical irregularity in the above appeal, therefore, we withdraw the appeal and a fresh appeal is being filed. Thereafter the assessee filed an appeal dated 19.10.2012 which has been ordered to be dismissed by the order in question dated 16.12.2013. Thereafter, the assessee filed the present appeal before us.
ISSUE NO. 1, 2 &3:-
4. All these issues are interconnected, therefore, are being taken up together for adjudication. Under these issues the assessee raised the question in connection with the dismissal of the appeal by the CIT(A) on technical grounds. The representative of the assessee has argued that the CIT(A) dismissed the appeal on ground of non- compliance of provision u/s.178(1) and 140(6) proviso 2 and 249(1) of the Act. It is also argued that the delay has not been condoned by the CIT(A) in accordance with law which has been duly been justified before him.
ITA No.1420/Mum/14 A.Y.2008-09
On the other hand the learned representative of the department has strongly relied upon the order passed by the CIT(A) in question. By giving the careful thoughts to the contention raised by the learned representative of the parties and perusing the record carefully, it came into the notice that the Assessing Officer has passed the order dated 21.12.2011 in view of the provision u/s.143(3) r.w.s. 144C(3) of the Act. This order has been passed on 21.12.2011 and subsequently the assessee filed an appeal before the CIT(A) on 20.01.2012. The appeal has been filed well within the time. Thereafter even before the expiry of one month the said appeal has been withdrawn by virtue of letter dated 19.10.2012 on 22.10.2012 passed by the CIT(A). The important contents with regard to filing the appeal further has also been mentioned in this year, further appeal has also been filed on 19.10.2012. The said appeal continued till its disposal upto 16.12.2013. We nowhere find any reason for filing the appeal delayed. In fact there is no delay in filing the appeal. The appeal remained in proceeding till its filing with effect from 20.01.2011. However, the appeal has been withdrawn on 22.10.2012 with due permission of the CIT(A) and the subsequent appeal has been filed on 19.10.2012 with due notice to the CIT(A) which continued till its disposal vide order dated 16.12.2013 in question. No doubt the delay is very much explanatory and the appeal is not liable to be dismissed on the basis of the delay in filing the appeal.
ITA No.1420/Mum/14 A.Y.2008-09
The other grounds which has been taken by the CIT(A) in his order that after the dissolution of the firm the liquidator did not intimate the information to the Assessing Officer within the period of 30 days u/s.178(1) of the Act and the form 35 was signed by Shri.Satish Kanodia having no authority to sign the appeal as per the provision of section 140(c) proviso 2 of the record. On record it is apparent that assessee has filed the return which has been dealt by the Assessing Officer vide order dated 21.12.2011. The Assessing Officer did not raised these points in his order and complete the assessment by assessing income of the assessee to the tune of Rs.1,58,89,470/-. The company has gone into liquidation and Shri Satish Kanodia has been appointed as liquidator as GSA who has filed the return and also filed the present appeal before us.
The technicalities raised by the CIT(A) came into the existence after the finalization of the assessment order dated 21.12.2011 and if technicalities be taken into consideration then the order passed by the Assessing Officer also came under the question. The provision u/s.178(1) of the Act seems directory in nature and default of which nowhere seems to curtail right of the parties. If the intimation was not given under the said provision the appeal memo which has been signed by the appellant as held by the CIT(A) is not in accordance with law, does not seems to be justifiable. The order dated 16.12.2013 in question has been passed merely on the technical
ITA No.1420/Mum/14 A.Y.2008-09 ground which nowhere in question in the order passed by the Assessing Officer dated 21.12.2011. In view of the said circumstances, we are of the view that the order passed by the CIT(A) in question is wrong against law and facts and is not liable to sustainable in the eyes of law. Therefore, we set aside the order dated 16.12.2013 and direct the CIT(A) to decide the matter afresh by giving an opportunity to the assessee on merits.
In result the appeal filed by the assessee is hereby allowed for statistical purpose.