Kiran G.Padiyar, Margao V. ACIT, Circle - 1,

CO 14/PAN/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1075 (ITAT-PANAJI)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MEHBOOB ALI KHAN LD
• Assessee Lawyers: D E ROBINSON
• Keywords: Business expenditure; Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, HON'BLE ACCOUNTANT MEMBER ITA N O . 96 /PNJ/20 13 : (A.Y 2007 - 08 ) ACIT, CIRCLE - 1, MARGAO ( APPELLANT) VS. MR. PADIYAR KIRAN GAJANAN 12, 2 ND FLOOR, SAPANA CHAMBERS, VARDE VALAULIKAR ROAD, MARGAO, GOA 403 601. PAN : ACNPG1671Q (RESPONDENT) CO NO. 14/PNJ/2013 (IN ITA N O . 96 /PNJ/20 13) : (A.Y 2007 - 08 ) MR. PADIYAR KIRAN GAJANAN 12, 2 ND FLOOR, SAPANA CHAMBERS, VARDE VALAULIKAR ROAD, MARGAO, GOA 403 601 (CROSS OBJECTOR) PAN : ACNPG1671Q VS. ACIT, CIRCLE - 1, MARGAO ( RESPONDENT) ITA N O . 97 /PNJ/20 13 : (A.Y 2007 - 08 ) ACIT, CIRCLE - 1, MARGAO ( APPELLANT) VS. MRS. NEENA KIRAN PADIYAR 12, 2 ND FLOOR, SAPANA CHAMBERS, VARDE VALAULIKAR ROAD, MARGAO, GOA 403 601. PAN : ADZPK4652J (RESPONDENT) CO NO. 15/PNJ/2013 (IN ITA N O . 97 /PNJ/20 13) : (A.Y 2007 - 08 ) MRS. NEENA KIRAN PADIYAR 12, 2 ND FLOOR, SAPANA CHAMBERS, VARDE VALAULIKAR ROAD, MARGAO, GOA 403 601 (CROSS OBJECTOR) PAN : ADZPK4652J VS. ACIT, CIRCLE - 1, MARGAO ( RESPONDENT) 2 ITA NOS. 96&97/PNJ/2013 & CO NOS. 14&15/PNJ/2013 (A.Y : 2007 - 08) ASSESSEES BY : D.E. ROBINSON, ADV. REVENUE BY : MEHBOOB ALI KHAN, LD. DR DATE OF HEARING : 16 / 06 /201 5 DATE OF PRONOUNCEMENT : 1 6 / 06 /201 5 O R D E R PER GEORGE MATHAN : 1. ITA NO. 96/PNJ/2013 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), PANAJI IN THE CASE OF SHRI PADIYAR KIRAN GAJANAN IN ITA NO. 221/MRG/09 - 10 DT. 21.3.2013 FOR A.Y 2007 - 08 AND CO NO. 14/PNJ/2013 IS THE CROSS OBJECTION FILED BY THE ASSESSEE, SHRI PADIYAR KIRAN GAJANAN IN ITA NO. 96/PNJ/2013. ITA NO. 97/PNJ/2013 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), PANAJI IN THE CASE OF MRS. NEENA KIRAN PADIYAR IN ITA NO. 222/MRG/09 - 10 DT. 21.3.2013 FOR A.Y 2007 - 0 8 AND CO NO. 15/PNJ/2013 IS THE CROSS OBJECTION FILED BY THE ASSESSEE, MRS. NEENA KIRAN PADIYAR IN ITA NO. 97/PNJ/2013. SHRI MEHBOOB ALI KHAN, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI D.E. ROBINSON, ADV. REPRESENTED ON BEHALF OF THE ASSESSEES . 2. AS ALL THE APPEALS AND CROSS OBJECTIONS ARE INTERCONNECTED AND RELATES TO THE SAME ISSUE AND IS OF THE HUSBAND AND WIFE TO WHOM THE PROVISIONS OF SEC. 5A OF THE INCOME TAX ACT APPLIES, ALL THE APPEALS AND CROSS OBJECTIONS ARE DISPOSED OFF BY THIS COM MON ORDER. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. AR ON BEHALF OF THE ASSESSEES THAT HE DOES NOT WISH TO PRESS THE CROSS OBJECTIONS BEING CO NOS. 14 & 15/PNJ/2013. CONSEQUENTLY, THE CROSS OBJECTIONS FILED BY THE ASSESSEES STANDS DISMISSED AS WITHDRAWN. 3 ITA NOS. 96&97/PNJ/2013 & CO NOS. 14&15/PNJ/2013 (A.Y : 2007 - 08) 4. IN RESPECT OF THE REVENUES APPEALS, IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSEES HAD ORIGINALLY PURCHASED A MINE FROM ONE SHRI DAMU NAIK. THIS WAS ON 3.10.1995. SUBSEQUENTLY, ON 2.7.2002 THE ASSESSEES HAD ENTERED INTO AN AGREEMENT WITH ONE SHRI VINAYAK GOVIND ANGLE FOR THE EXTRACTION AND SELLING OF IRON ORE AFTER GIVING CONSIDERATION OF RS. 50/TON EACH TO THE ASSESSEES. THIS AGREEMENT WAS FURTHER MODIFIED BY AN ADDENDUM DT. 1.3.2004 BY WHICH THE ASSESSEES HAD, BY MUTUAL CONSENT, AGREED TO CANCEL AND PUT AN END TO THE AGREEMENT DT. 2.7.2002 FOR WHICH THE ASSESSEES WERE TO PAY AN AMOUNT OF RS.1,09,00,000/ - EACH TO THE SAID SHRI VINAYAK GOVIND ANGLE. IT WAS THE SUBMISSION THAT THE ISSUE WAS WHETHER THE AMOUNT OF RS. 1,09,00,000/ - PAID BY EACH OF THE ASSESSEES TO SHRI VINAYAK GOVIND ANGLE WAS A BUSINESS EXPENDITURE OR NOT. IT WAS THE SUBMISSION THAT THE ISSUE WAS ORIGINALLY HELD AGAINST THE ASSESSEES. IT WAS THE SUBMISSION THAT THE ASSESSEES HAD FILED AN APPEAL TO T HE HON'BLE JURISDICTION HIGH COURT OF BOMBAY AT GOA AND THE HON'BLE HIGH COURT HAD VIDE ORDER DT. 20.1.2015 IN TAX APPEAL NO. 45 & 60 OF 2014 SET ASIDE THE ORDER OF THE TRIBUNAL WITH THE DIRECTION TO DECIDE THE APPEALS PREFERRED BY THE REVENUE AFRESH AFTER GIVING THE ASSESSEES AND THE REVENUE OPPORTUNITY OF BEING HEARD WITH REGARD TO THE ADDITIONAL DOCUMENTS. WHEN THE ISSUE OF ADDITIONAL DOCUMENTS WAS QUESTIONED, IT WAS SUBMITTED BY THE LD. AR ON BEHALF OF THE ASSESSEES THAT ORIGINALLY THE PAPER BOOK HAD B EEN FILED ON 1.8.2013 AND SUBSEQUENTLY, ON THE DIRECTIONS OF THE BENCH ON 1.8.2013 AN ADDITIONAL PAPER BOOK WAS FILED DT. 2.8.2013 WHICH WAS BASICALLY DOCUMENTS WHICH WERE REFERRED TO IN THE AGREEMENT DT. 2.7.2002. IT WAS THE SUBMISSION BY THE LD. AR THAT THESE DOCUMENTS WERE NOT SUBMITTED BY THE ASSESSEES ON THEIR OWN VOLITION AND THESE WERE ADDITIONAL EVIDENCES WHICH WERE NOT BEFORE THE LOWER AUTHORITIES AND THE ASSESSEES HAD NOT BEEN HEARD ON THESE FRESH EVIDENCES. IT WAS THE SUBMISSION THAT AS THESE A RE FRESH EVIDENCES AND WERE NEVER BEFORE THE LOWER AUTHORITIES, THESE EVIDENCES COULD NOT BE CONSIDERED BY 4 ITA NOS. 96&97/PNJ/2013 & CO NOS. 14&15/PNJ/2013 (A.Y : 2007 - 08) THE TRIBUNAL. FOR THIS PROPOSITION, HE RELIED UPON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PARI MANGALDAS GIRDHARDAS REPORTED IN [1977] CTR (GUJ) 647. IT WAS ALSO THE SUBMISSION THAT THE PROVISIONS OF RULE 29 OF THE ITAT RULES HAD BEEN VIOLATED INSOFAR AS THE REASONS HAD NOT BEEN RECORDED FOR CALLING FOR THESE EVIDENCES. IT WAS THE SUBMISSION THAT THE ISSUE WAS LIABLE TO BE DEC IDED AFTER DISCARDING THE EVIDENCES FILED IN THE PAPER BOOK DT. 2.8.2013. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTSET, A PERUSAL OF THE PAPER BOOK FILED ON 2.8.2013 CLEARLY SHOWS THAT THESE ARE DOCUMENTS WHICH ARE REFERRED TO IN THE AGREEMENT DT. 2.7.2012 WHICH IS PART OF THE PAPER BOOK DT. 1.8.2013. HOWEVER, ADMITTEDLY THESE ARE FRESH EVIDENCES AND THEY HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES. AS THESE ARE FRESH EVIDENCES AND THESE HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORITIES , IT WOULD NOT BE PROPER ON THE PART OF THE TRIBUNAL TO CONSIDER SUCH FRESH EVIDENCES WITHOUT GRANTING THE LOWER AUTHORITIES THE BE NEFIT OF SUCH DOCUMENTS. THIS IS, BUT THE BASIC FOUNDATION OF THE PRINCIPLES OF NATURAL JUSTICE. IN THE CIRCUMSTANCE, IN TH E INTEREST OF JUSTICE, THE ISSUES IN BOTH THESE APPEALS ARE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEES ADEQUATE OPPORTUNITY TO SUBSTANTIATE THEIR CASE. IN THE RESULT, THE APPEALS OF THE REVENUE ARE PARTLY ALLOWED FOR S TATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEALS OF THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS FILED BY THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 6 /06/2015. S D / - (N.K. BILLAIYA) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 6 /06/ 201 5 *SSL* 5 ITA NOS. 96&97/PNJ/2013 & CO NOS. 14&15/PNJ/2013 (A.Y : 2007 - 08) COPY TO : (1) APPELLANT (2) RESPONDENT ( I ) MR. PADIYAR KIRAN GAJANAN & ( I I ) MRS. NEENA KIRAN PADIYAR (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 6 ITA NOS. 96&97/PNJ/2013 & CO NOS. 14&15/PNJ/2013 (A.Y : 2007 - 08) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 16/06/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 1 7 /06/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 1 7 /06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 1 7 /06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 7 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 16/06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 7 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER