SUPERMAX INTERNATIONAL P. LDD, MUMBAI v. ACIT CEN CIR 38, MUMBAI

ITA 6769/MUM/2016 | 2009-2010
Pronouncement Date: 29-11-2017 | Result: Allowed

Appeal Details

RSA Number 676919914 RSA 2016
Assessee PAN AAACS8024R
Bench Mumbai
Appeal Number ITA 6769/MUM/2016
Duration Of Justice 1 year(s) 11 day(s)
Appellant SUPERMAX INTERNATIONAL P. LDD, MUMBAI
Respondent ACIT CEN CIR 38, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 29-11-2017
Assessment Year 2009-2010
Appeal Filed On 18-11-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH B MUMBAI BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.6769/MUM/2016 (ASSESSMENT YEAR- 2009-10) M/S. SUPERMAX INTERNATIONAL PVT. LTD. 4 TH FLOOR MALHOTRA HOUSE OPP. G P O FORT MUMBAI 400001. PAN: AAACS8024R VS. ACIT CC-38 [NOW DCIT CENTRAL CIRCLE- 6(3)] 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI-400021. (APPELLANT) (RESPONDENT) ITA NO.6770/MUM/2016 (ASSESSMENT YEAR- 2010-11) M/S. SUPERMAX INTERNATIONAL PVT. LTD. 4 TH FLOOR MALHOTRA HOUSE OPP. G P O FORT MUMBAI 400001. PAN: AAACS8024R VS. ACIT CC-38 [NOW DCIT CENTRAL CIRCLE- 6(3)] 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI-400021. (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. PRAYAG JHA (AR) REVENUE BY : SHRI SUMAN KUMAR (DR) DATE OF HEARING : 07.11.2017 DATE OF PRONOUNCEMENT : 29.11.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH JUDICIAL MEMBER : THESE TWO APPEAL BY ASSESSEE U/S.253 OF THE INCOME TAX ACT ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX [LD. CIT(A)] (APPEALS)-54 MUMBAI DATED 08.09.2016 FOR ASSESSMENT YEARS (AY) 2 009-10 & 2010-11. IN BOTH THE APPEAL THE ASSESSEE HAS RAISED THE IDENTI CAL GROUND OF APPEAL THAT LD. CIT(A) ERRED IN DISMISSING THE ASSESSEES APPEAL BY NOT CONDONING THE DELAY IN 2 ITA NO.6769 & 6770/M/2016 M/S. SUPERMAX INTERNATI ONAL PVT. LTD. FILING THE APPEAL. FOR APPRECIATION OF FACT WE ARE REFERRING THE FACT FOR AY 2009- 10. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT ORDER FOR AY 2009-10 WAS COMPLETED ON 31.12.2010 UNDER SECTION 143(3) IN THE ASSESSMENT ORDER THE ASSESSING OFFICER (AO) MADE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN (LTCG) BY INVOKING THE PROVISION OF SECTION 50C AND INITIATED THE PENALTY. THE AO LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF TH E ACT FOR RS. 27 93 525/- VIDE ORDER DATED 04.03.2013. THE ASSESSEE FILED APPEAL B EFORE THE LD. CIT(A) ON 19.10.2015. ALONG WITH THE APPEAL THE APPELLANT FI LED APPLICATION FOR CONDONATION OF DELAY OF 902 DAYS IN FILING APPEAL. THE APPLICAT ION FOR CONDONATION OF DELAY WAS DISMISSED BY LD CIT(A) RESULTANTLY THE APPEAL OF T HE ASSESSEE WAS NOT ADMITTED AND FOR HEARING AND DISMISSED IN LIMINE. THUS FURT HER AGGRIEVED BY THE ORDER OF LD. CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEAL B EFORE US. 3. WE HAVE HEARD THE LD REPRESENTATIVES OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF THE LD CIT(A). THE LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE ARGUED THAT THE ASSESSEE HAS GOOD CASE ON MERIT. TH E APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL WAS NOT ALLOWED BY LD . CIT(A) HENCE THE APPEAL OF THE ASSESSEE WAS NOT ADMITTED. THE LD. AR OF THE AS SESSEE ARGUED THAT THE DELAY IN FILING THE APPEAL WAS DUE TO THE FACT THAT THERE WA S DISPUTE AMONG THE DIRECTORS OF THE COMPANY. ONE OF THE DIRECTOR SHRI RAJINDER KUMA R MALHOTRA FILED COMPANY PETITION BEFORE THE COMPANY LAW BOARD MUMBAI AGAIN ST THE CERTAIN HOSTILE DIRECTORS OF OPPRESSION AND MISMANAGEMENT WITH THE PRAYER TO REMOVE THE HOSTILE 3 ITA NO.6769 & 6770/M/2016 M/S. SUPERMAX INTERNATI ONAL PVT. LTD. DIRECTOR. THE COMPANY LAW BOARD VIDE ORDER DATED 31 .01.2013 ALLOWED THE SHARE HOLDER TO REMOVE THE HOSTILE DIRECTOR AND TO APPOIN T NEW BOARD OF DIRECTOR. THE MATTER WAS FURTHER GONE IN APPEAL BEFORE THE HONBL E BOMBAY HIGH COURT AND THE ORDER OF COMPANY LAW BOARD WAS UPHELD ON 20.08.2014 . AS THERE WAS DISPUTE BETWEEN HOSTILE DIRECTOR WHO HAVE HANDED OVER THE B OOKS OF ACCOUNT AND DOCUMENT INCLUDING THE INCOME-TAX PROCEEDINGS THE ASSESSEE HAD SHOWN SUFFICIENT CAUSE FOR CONDONING THE DELAY. THE LD. AR OF THE AS SESSEE FURTHER PRAYED THAT DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A) MAY BE C ONDONED AND THE MATTER MAY BE RESTORED TO THE FILE OF AO FOR DECISION ON MERIT. 4. ON THE OTHER HAND THE LD. DR FOR THE REVENUE S UPPORTED THE ORDER OF LD. CIT(A). IT WAS ARGUED THAT AS PER THE ASSESSEES OW N VERSION EXPLAINED BEFORE THE LD. CIT(A) THE ASSESSEE FAILED TO EXPLAIN THE DELA Y AFTER JANUARY 2015 TILL THE FILING OF APPEAL IN OCTOBER 2015. THE ASSESSEE HAS NOT EXP LAINED THE CAUSE OF DELAY FOR THAT PERIOD FROM OCTOBER 2015. THE LD. DR FOR THE R EVENUE PRAYED FOR DISMISSAL OF THE APPEAL. IN THE REJOINDER ARGUMENT THE LD. AR O F THE ASSESSEE ARGUED THAT THE CERTIFIED COPY OF IMPUGNED ORDER PASSED BY LD CIT(A ) WAS RECEIVED BY THE ASSESSEE ONLY ON 12.10.2015 AND THE APPEAL WAS FILE D IMMEDIATELY WITHOUT WASTING ANY FURTHER TIME. IT WAS FURTHER ARGUED THAT THE AD DITION MADE IN THE QUANTUM ASSESSMENT HAS BEEN RESTORED TO THE FILE OF AO BY T HE TRIBUNAL IN ITA NO. 1573/MUM/2013 DATED 21.02.2017. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE P ARTIES AND HAVE GONE THROUGH THE ORDER OF LD. CIT(A). THE APPELLANT/ASSE SSEE FILED AN APPLICATION FOR 4 ITA NO.6769 & 6770/M/2016 M/S. SUPERMAX INTERNATI ONAL PVT. LTD. CONDONATION OF DELAY BEFORE THE LD. CIT(A). THE ASS ESSEE HAS PLACED ON RECORD THE COPY OF THE APPLICATION FOR CONDONATION OF DELAY AN D THE AFFIDAVIT IN SUPPORT THEREOF. WE HAVE PERUSED THE CONTENTS OF THE APPLIC ATION FOR CONDONATION OF DELAY. IN THE APPLICATION THE ASSESSEE HAS EXPLAINED THAT THERE WAS DISPUTE AMONG THE MAJORITY SHARE-HOLDER AND SHRI RAJINDER K. MALHOTRA GROUP. IN FEBRUARY 2012 SHRI RAJINDER KUMAR MALHOTRA FILED A COMPANY PETITI ON BEFORE THE COMPANY LAW BOARD. THE COMPANY LAW BOARD PASSED ORDER IN FAVOUR OF SHRI RAJINDER K. MALHOTRA ON 31.03.2013 AND ALLOWED TO REMOVE THE HO STILE DIRECTOR AND TO APPOINT NEW BOARD OF DIRECTOR. AGAINST THE ORDER OF COMPANY LAW BOARD THE APPEAL WAS FILED BEFORE THE HONBLE BOMBAY HIGH COURT. THE ORD ER OF COMPANY LAW BOARD WAS UPHELD ON 12 TH /20 TH OF AUGUST 2014. DURING THE ASSESSMENT PROCEEDING P.B. VYAS (HOSTILE DIRECTOR) OF ASSESSEE-COMPANY AND SHR I RAJINDER K. MALHOTRA ATTENDED BEFORE THE AO. THE HOSTILE DIRECTOR WAS RE QUESTED TO HAND OVER THE DOCUMENT TO THE NEW DIRECTOR. THE DOCUMENTS WERE NO T HANDED OVER. SHRI RAJINDER K. MALHOTRA AGAIN FILED APPLICATION BEFORE THE COMP ANY LAW BOARD FOR SEEKING RECOVERY OF RECORD AND FOR TAKING CHARGE OF THE ASS ET OF THE COMPANY. THE COMPANY LAW BOARD VIDE ORDER DATED 06.01.2015 PASSE D THE ORDER DIRECTING HOSTILE DIRECTOR TO HAND OVER TO RECORD. THE ASSESS EE-COMPANY NEWLY APPOINTED BOARD OF DIRECTOR THEREAFTER AFTER TAKING CERTIFIE D COPY OF THE PENALTY ORDER FILED THE APPEAL BEFORE LD CITA) AND FILED AFFIDAVIT OF GORDHANDAS D ARORA. WE HAVE SEEN THAT THE DELAY IN FILING THE APPEAL WAS SUFFIC IENTLY EXPLAINED. THE ASSESSEE HAS SHOWN SUFFICIENT CAUSE FOR CONDONATION OF DELAY IN FILING THE APPEAL. IN OUR VIEW 5 ITA NO.6769 & 6770/M/2016 M/S. SUPERMAX INTERNATI ONAL PVT. LTD. THE LD CIT(A) OUGHT TO HAVE CONDONE THE DELAY. CONS IDERING THE PECULIAR FACT OF THE CASE AS EXPLAINED BY THE ASSESSEE THERE WAS SU FFICIENT CAUSE FOR NOT FILING APPEAL WITHIN THE PRESCRIBED PERIOD OF LIMITATION. IN THE RESULT THE GROUND NO.1&2 OF THE APPEAL ARE ALLOWED. CONSIDERING THE FACTS TH AT WE HAVE ALLOWED THE APPEAL OF THE ASSESSEE THE LD CIT (A) IS DIRECTED TO CONSIDER THE CASE OF THE ASSESSEE ON MERIT IN ACCORDANCE WITH LAW AND THE DECISION OF THE TRIB UNAL IN ITA NO. 1573/MUM/2013 DATED 21.02.2017. NEEDLESS TO SAY TH AT BEFORE DECIDING THE CASE THE LD CIT(A) SHALL PROVIDE THE SUFFICIENT OPPORTU NITY TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ITA NO.6770/MUM/2016 7. THE ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APP EAL AS RAISED IN APPEAL FOR AY 209-10 IN ITA NO.6769/M/2016. AS WE HAVE ALRE ADY ALLOWED THE APPEAL OF ASSESSEE FOR AY 2009-10 ON IDENTICAL FACTS THUS C ONSIDERING THE PRINCIPAL OF CONSISTENCY THIS APPEAL IS ALSO ALLOWED WITH SIMILA R OBSERVATION. 8. IN THE RESULT BOTH THE APPEAL FILED BY ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF NOVEMBER 2017. SD/- SD/- (G.S. PANNU) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 29/11/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. 6 ITA NO.6769 & 6770/M/2016 M/S. SUPERMAX INTERNATI ONAL PVT. LTD. BY ORDER (ASSTT.REGISTRAR) ITAT MUMBAI //TRUE COPY/