ACIT 9(3), MUMBAI V. WIN CABLE & DATACOM P. LTD, MUMBAI

ITA 1064/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3630 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 04-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MANOJ C DIXIT
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO.1064/MUM2011 ASSESSMENT YEAR : 2007-08 ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-9(3), 2 ND FLOOR, ROOM NO.229 AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. VS. M/S. WIN CABLE & DATACOM PVT. LTD. 4 TH FLOOR RAHEJAS SANTACRUZ (W) MUMBAI-400 054. PAN :AAACW 2239 G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY SHANKAR RESPONDENT BY : SHRI MANOJ C. DIXIT DATE OF HEARING : 15.04.2013 DATE OF PRONOUNCEMENT : 19.04.2013 O R D E R PER RAJENDRA SINGH, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 30.11.2010 FOR THE ASSESSMENT YEAR 2007-08. THE ONL Y DISPUTE RAISED IN THIS APPEAL IS REGARDING ADDITIONS UNDER SECTION 68 OF T HE INCOME TAX ACT, 1961 (THE ACT). 2. THE FACTS IN BRIEF ARE THAT THE ASSESSING OFFICE R FROM THE AIR INFORMATION NOTED THAT SEVERAL PARTIES HAD MADE PAY MENT TO THE ASSESSEE ON ACCOUNT OF PROFESSIONAL/TECHNICAL FEES RENDERED BY THEM. THE ASSESSING OFFICER, THEREFORE ASKED THE ASSESSEE TO RECONCILE THE SAID INFORMATION WITH RESPECT TO THE BOOKS OF ACCOUNT. THE ASSESSEE VIDE LETTER DATED 3.12.2009 STATED THAT THE AIR INFORMATION CONTAINED ABOUT 445 ENTRIES AND THE ASSESSEE HAS BEEN ABLE TO RECONCILE 95% AIR INFORMATION. IT WAS ALSO SUBMITTED THAT CERTAIN TRANSACTIONS MENTIONED IN THE AIR INFORMATI ON WERE NOT RECORDED IN THE BOOKS OF ACCOUNT AND IN RESPECT OF SOME OTHER T RANSACTIONS THE PARTIES HAD BOOKED EXCESS EXPENSES. THESE PARTIES, IT WAS F URTHER SUBMITTED, WERE ITA NO.1064M/11 A Y .07-08 2 FROM NORTH INDIA WHO HAD NOT RESPONDED TO THE LETTE RS SENT BY THE ASSESSEE. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD NOT REC EIVED ANY PAYMENT FROM THE SAID PARTIES. THEREFORE, NO INCOME HAD ACCRUED. THEREAFTER, THE ASSESSING OFFICER ASKED THE ASSESSEE TO FILE CONFIRMATIONS FR OM THE SAID PARTIES WHICH COULD NOT BE DONE. THE ASSESSING OFFICER THEREFORE, ISSUED LETTERS UNDER SECTION 133(6) TO THE PARTIES OUT OF WHICH ONLY FIV E PARTIES RESPONDED AND CONFIRMED THAT THEY HAD ENTERED INTO TRANSACTIONS W ITH THE ASSESSEE . THE REMAINING PARTIES DID NOT CONFIRM THE TRANSACTIONS NOR THE ASSESSEE FILED ANY CONFIRMATIONS. THE ASSESSING OFFICER THEREFORE, ADD ED SUM OF RS.14,66,175/- RELATING TO THE TRANSACTIONS WITH THE PARTIES TO TH E TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. 3. IN APPEAL CIT(A) OBSERVED THAT THE ASSESSING OFF ICER HAD NOT GIVEN EITHER NAMES OF SUCH PARTIES OR VALUE OF TRANSACTIO NS ENTERED INTO BY THEM BY THE ASSESSEE. THE ASSESSING OFFICER HAD ALSO NOT ST ATED ANYTHING ON THE DIFFERENCE IF ANY BETWEEN SUCH TRANSACTIONS IN AIR AND THOSE RECORDED IN THE BOOKS OF ASSESSING OFFICER. CIT(A) OBSERVED THAT BA SED ON CERTAIN RECONCILIATION FIGURES MADE AVAILABLE BY THE ASSESS EE HE HAD MADE THE ADDITION WITHOUT ESTABLISHING ANY LINKAGE TO THE IN FORMATION IN THE AIR. CIT(A) ALSO OBSERVED THAT THE ONUS WAS ON THE ASSES SING OFFICER TO ESTABLISH THAT ANY AMOUNT HAD BEEN RECEIVED BY THE ASSESSEE, WHICH HAD NOT BEEN DISCHARGED. CIT(A) THEREFORE DELETED THE ADDITION M ADE AGGRIEVED BY WHICH THE REVENUE IS IN APPEAL. 4. WE HAVE HEARD BOTH PARTIES, PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIND THAT THE FINDING OF THE C IT(A) THAT THE ASSESSING OFFICER HAD NEITHER GIVEN NAMES OF SUCH PARTIES NOR VALUE OF SUCH TRANSACTIONS IS NOT CORRECT. THE ORDER OF THE ASSESSING OFFICER CLEARLY SHOWS THAT THE ASSESSEE DURING THE PROCEEDINGS MENTIONED THAT IT H AD SENT COMMUNICATIONS TO THE SAID PARTIES WHICH HAD NOT RESPONDED. FURTHE R, THE ASSESSING OFFICER HAD ALSO ISSUED LETTERS UNDER SECTION 133(6) TO THE PARTIES. THEREFORE, IT IS NOT CORRECT TO STATE THAT NAMES AND AMOUNTS OF THE PART IES WERE NOT MENTIONED ITA NO.1064M/11 A Y .07-08 3 BY THE ASSESSING OFFICER. THE ASSESSING OFFICER CLE ARLY MENTIONED THAT TRANSACTIONS AGGREGATING TO RS.7,66,919/- WERE NOT RECORDED IN THE BOOKS AND AMOUNTS TOTALING TO RS.6,99,256/- WERE RECORDED LES S. HE HAD THEREFORE ADDED TOTAL AMOUNT OF RS.14,66,175/-. THE REASON GI VEN BY CIT(A) FOR DELETING THE ADDITION IS THEREFORE NO CORRECT. HOWE VER, WE NOTE THAT ASSESSING OFFICER HAD ISSUED ONLY LETTERS UNDER SECTION 133(6 ) WHICH WERE NOT COMPLIED WITH THE PARTIES. MATTER WAS NOT FOLLOWED BY ISSUE OF SUMMONS EITHER BY ASSESSING OFFICER OR AT THE LEVEL OF CIT(A) TO FIND OUT EXACT STATE OF AFFAIRS. THE MATTER THEREFORE IN OUR VIEW REQUIRES FRESH EXA MINATION AT THE LEVEL OF ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ORD ER OF CIT(A) AND RESTORE THE MATTER TO THE ASSESSING OFFICER FOR PASSING A FRESH ORDER AFTER ASCERTAINING THE DETAILS FROM THE PARTIES AND AFTER ALLOWING OPPORTU NITY TO THE ASSESSEE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.4.2013. SD/- SD/- (VIVEK VARMA) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED: 19.4. 2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.