Biryas Finance And Investments Private Limited v. Income Tax Officer, Ward 2(1)(1) And Anr. …

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2582 OF 2021 Biryas Finance and Investments Private Limited ….. Petitioner Vs. Income Tax Officer, Ward 2(1)(1) and anr. ….. Respondents Mr. Devendra H. Jain a/w Ms. Radha Halbe, for Petitioner.Mr. Suresh Kumar, for Respondents. CORAM:K.R.SHRIRAM, J &FIRDOSH P. POONIWALLA, J. DATED :JUNE 20, 2023 P.C. 1.Petitioner is impugning an order passed by the Income TaxAppellate Tribunal (ITAT) on 18/05/2021 rejecting Misc.Application No.220/Mum/2020 arising out of ITA No.3141/Mum/2018 for Assessment Year 2014-15. 2.Petitioner’s appeal came to be rejected by ITAT. It ispetitioner’s case as explained in paragraph 4.4 of the petition,that petitioner’s representative, during the hearing, hadpresented paperbook of 43 pages. Matter was posted on30/09/2019. During the course of hearing, members of theTribunal asked petitioner to further demonstrate the stand takenby it that office premises, which was the subject matter, neverformed part of block of asset and that no depreciation was claimed on said property under Income Tax Act, 1961. Petitionerfiled statement of accounts for the year ending March 2011,2012, 2013 and 2014. The documents were filed on or about30/09/2019 on which date the appeal was heard by the Tribunal.Petitioner filed the statement of accounts by compilingpaperbook containing 71 pages. The paperbook containedaffidavits, statements and computation of total income for theyear ending March 2011, 2012, 2013, 2014 and was filed withthe Bench Clerk of the Tribunal. A copy was also served uponthe DR on 01/10/2019. 3.In the order dismissing petitioner’s appeal passed on13/11/2019, it is the petitioner’s case that the Tribunal has notconsidered or dealt with the 2[nd]paperbook containingappromixately 71 pages. Petitioner, therefore, filed Misc.Application in which the impugned order came to be passed. Inthe impugned order, ITAT referred to the compilation which itconsidered being a compilation of 43 pages filed by petitioner.Petitioner has stated in the petition that the compilation of 43pages was the 1[st] paperbook and the 2[nd] paperbook filed was of71 pages. In the impugned order, there is no reference. Mr.Suresh Kumar submitted that the Tribunal has stated that it hasconsidered the paperbook. But what has been considered is only one paperbook of 43 pages. 4.To the averments in the petition in paragraph 4.4, about 1[st]paperbook, 2[nd] paperbook of 71 pages, when it was filed, the factthat the copy was served on respondents etc., there is no denial.In the affidavit-in-reply, there is no reference to paragraph 4.4. 5.On 23/02/2022, this Court had directed respondent no.1 tofile an affidavit after inspecting the Records and Proceedings andmake a statement whether such a paperbook was filed. Theaffidavit has been filed, but it only says that paperbook was notfound. We would, however, agree with Mr. Jain that just becausethe paperbook is not found in the Records and Proceedings of theTribunal, it does not mean it was not filed. Petitioner has filed anaffidavit through its Director stating that the paperbook wasfiled. A copy of the paperbook was also served on 01/10/2019upon the departmental representative through covering letteraddressed to the Registrar, Appellate Tribunal, CGO Building,Mumbai. 6.To the averments of petitioner that such a paperbook wasfiled, there is no denial. In the circumstances, we would lean infavour of petitioner and accept petitioner’s explanation that sucha paperbook containing 71 pages was filed. Without going intoor dealing with this point, the Tribunal has simply rejected the Misc. applicatoin. 7.Therefore, we hereby quash and set aside the impugnedorder dated 18/05/2021 and remand the matter to the Tribunal. 6.To the averments of petitioner that such a paperbook wasfiled, there is no denial. In the circumstances, we would lean infavour of petitioner and accept petitioner’s explanation that sucha paperbook containing 71 pages was filed. Without going intoor dealing with this point, the Tribunal has simply rejected the Misc. applicatoin. 7.Therefore, we hereby quash and set aside the impugnedorder dated 18/05/2021 and remand the matter to the Tribunal. 8.Petitioner shall file compilation once again in the Tribunalwithin 2 weeks. The Tribunal shall consider this compilation tobe filed and decide whether its order dated 13/11/2019dismissing petitioner’s appeal requires any modification. 9.Petition disposed. 10.We clarify that we have not made any observations onmerits of the matter. (FIRDOSH P. POONIWALLA, J) (K.R.SHRIRAM, J)