ELDER PROJETS LTD, MUMBAI v. ACIT CC 34, MUMBAI

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH MUMBAI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ./ I.T.A. NO S . 477 & 479/MUM/2017 ( / ASSESSMENT YEAR S : 2008 - 09 & 2011 - 12 ) ELDER PROJECTS LTD. ELDER HOUSE C - 9 DALIA INDUSTRIAL ESTATE OFF. VEERA DESAI ROAD ANDHERI (W) MUMBAI - 400 058 / VS. ACIT CENTRAL CIRCLE - 32 MUMBAI ./ ./ PAN/GIR NO. AAACE 7387 B ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI UJJWAL GANWAR / RESPONDENT BY : SHRI N. HEMALATHA / DATE OF HEARING : 09.11.2017 / DATE OF PRONOUNC EMENT : 10.11 .2017 / O R D E R PER SHAMIM YAHYA A. M.: TH ESE ARE APPEALS BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR THE CONCERNED ASSESSMENT YEARS. 2. THE COMMON GROUNDS RAISED (EXCEPT FO R THE CHANGE IN FIGURE) READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN PASSING THE APPELLATE ORDER WITHOUT AFFORDING EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE APPE LLANT. 2 ITA NO S . 477 & 479/M/2017 (A.YS.2008 - 09 & 2011 - 12) ELDER PROJECTS LTD. VS. ACIT 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONDONING THE DELAY IN FILING THE IMPUGNED APPEAL. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE AND IN LAW THE LD COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING AN AMOUNT OF RS . 14 53 625/ - BY INVOKING PROVISIONS OF SECTION 14A R.W. RULE 8D OF THE INCOME TAX ACT 1961. 4. ON THE FACTS AND CIRCUMSTANCES OF THE A PPELLANT'S CASE AND IN LAW THE LD COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING CARRY FORWARD OF BROUGHT FORWARD DEPRECIAT ION AMOUNTING TO RS.1 81 56 680/ - AS PER THE GROUNDS STATED IN THE IMPUGNED ORDER OR O THERWISE. 3. IN THIS CASE CONSEQUENT UPON THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). IN THE APPELLATE ORDER THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NOT ED THAT THE APPEAL FILED WAS BEYOND THE STATUTORY PERIOD. HOWEVER THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NOWHERE MENTIONED THE PERIOD OF DELAY. NOTING THAT THE ASSESSEE HAS ALSO SOUGHT SEVERAL ADJOURNMENTS THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) PROCEEDED TO HOLD THAT THE DELAY WILL NOT BE CONDONED AND THE APPEAL WAS DISMISSED A S UN ADMITTED. 4. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. 5. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND THAT THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL BY HOLDING THAT HE WAS NOT CONDONING THE DELAY IN FILING OF THE APPEAL. HOWEVER THE LD. COMMISSIONER OF 3 ITA NO S . 477 & 479/M/2017 (A.YS.2008 - 09 & 2011 - 12) ELDER PROJECTS LTD. VS. ACIT INCOME TAX (APPEALS) HAS NOWHERE IN HIS ORDER MENTIONED THE DELAY WHICH HE IS NOT CONDONING. I FI ND THAT THE HONBLE APEX COURT IN THE CASE OF SAHARA FARMS 300 ITR 403 HAS HELD THAT EVEN AN ADMINISTRATIVE ORDER HA S TO BE CONSISTENT WITH RULES OF NATURAL JUSTICE. PROPER APPLICATION OF MIND IS AN INTEGRAL AND I N ALIENABLE PART OF THE SAME . DEARTH OF THE APPLICATION OF MIND BY THE FIRST APPELLATE AUTHORITY IS PALPABLY MANIFEST I N THIS CASE. ON ENQUIRY THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE DELAY IN FILING BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) MA Y BE OF AROUND ONE MONTH. HENCE IN THE INTEREST OF JUSTICE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE DELAY IN FILING BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS CONDONE D AND THE ISSUE RAISED IS REMITTED TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS DIRECTED TO PASS A SPEAKING ORDER ON THE MERITS OF THE CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT THESE APPEALS FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURP OSE. ORDER PRONOUNCED IN THE OPEN COURT ON 10.11.2017 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 10.11.2017 . . ./ ROSHANI SR. PS 4 ITA NO S . 477 & 479/M/2017 (A.YS.2008 - 09 & 2011 - 12) ELDER PROJECTS LTD. VS. ACIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F ILE / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI