RAVIRAJ RELEMPADDU, MUMBAI V. ITO 23(1)(4), NAVI MUMBAI

ITA 107/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71400 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 31-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D PRABHAKAR REDDY
• Assessee Lawyers: BHDRESH DOSHI
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , . ! , ' # BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO. 107/MUM/2011 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2006-07 SHRI RAVI RAJ RELEMPADDU, ROOM NO.1, 2 ND FLOOR, SAI BAUG, BHANDUP (WEST) MUMBAI 400078 $ $ $ $ / VS. THE INCOME TAX OFFICER 23(1)(4), MUMBAI. & ' ./ ' ./ PAN/GIR NO. : AFDPR 4214B ( &( / APPELLANT ) .. ( )*&( / RESPONDENT ) ./ I.T.A. NO. 648/MUM/2011 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2006-07 THE INCOME TAX OFFICER 23(1)(4), MUMBAI. $ $ $ $ / VS. SHRI RAVI RAJ RELEMPADDU, ROOM NO.1, 2 ND FLOOR, SAI BAUG, BHANDUP (WEST) MUMBAI 400078 & ' ./ ' ./ PAN/GIR NO. AFDPR 4214B ( &( / APPELLANT ) .. ( )*&( / RESPONDENT ) REVENUE BY SHRI D. PRABHAKAR REDDY ASSESSEE BY SHRI BHDRESH DOSHI $ 2 3' / DATE OF HEARING : 15/10/2013 45% 2 3' / DATE OF PRONOUNCEMENT : 15/10/2013 6 / O R D E R PER I.P.BANSAL,J.M: THESE ARE CROSS APPEALS AND ARE DIRECTED AGAINS T THE ORDER PASSED BY LD. CIT(A)-33, MUMBAI DATED 1/10/2010 FOR ASSESSMENT YE AR 2006-07. GROUNDS OF APPEAL READ AS UNDER: ./ I.T.A. NO. 107& 648/MUM/2011 ( $ $ $ $ % % % % / ASSESSMENT YEARS : 2006-07 2 GROUNDS OF ASSESSEES APPEAL IN ITA NO.107/MUM/2011 : 1. THE CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWA NCE OF TRANSPORT HIRE CHARGES TO THE EXTENT OF RS. 21,59,200/-. 2. THE CIT(A) HAS ALSO ERRED IN SUSTAINING THE DISA LLOWANCE OF SUB CONTRACT CHARGES TO THE EXTENT OF RS. 10,06,376/-. 3. THE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.1,88,403/- ON ACCOUNT OF UNDERSTATING OF INCOME. GROUNDS OF REVENUES APPEAL IN ITA NO.648/MUM/2011: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS. 24,03,635/ - ON ACCOUNT OF T RANSPORT HIRE CHARGES AND RS.15,69,474/- ON ACCOUNT OF SUB CONTRACT CHARGES O N THE GROUND THAT TDS PROVISION IS NOT APPLICABLE TO THOSE PAYMENTS WHERE AS THE DETAILS SUBMITTED BY THE ASSESSEE BEFORE THE LD. CIT(A) VARIES FROM THAT SUB MITTED DURING ASSESSMENT PROCEEDINGS. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ID. CIT(A) FAILED TO APPRECIATE THAT THE FIGURES SUBMITTED BY THE ASSESS EE BEFORE THE CIT(A) AND DURING ASSESSMENT PROCEEDINGS DIFFER. THE LD. CIT(A) ERRED IN ADMITTING FRESH EVIDENCE, WITHOUT GIVING OPPORTUNITY TO THE A.O. TO CROSS VER IFY THOSE, AND THEREBY ACTED CONTRARY TO THE PROVISIONS OF RULE 46A OF THE I.T. RULES, 1962. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,09,000/- MADE ON A CCOUNT OF LEGAL AND PROFESSIONAL CHARGES WHEN THE ASSESSEE HAD FAILED TO GIVE ANY SA TISFACTORY EXPLANATION DURING ASSESSMENT PROCEEDINGS DESPITE ADEQUATE OPPORTUNITY GIVEN. THE LD. CIT(A) ERRED IN ADMITTING FRESH EVIDENCE, WITHOUT GIVING OPPORTUNIT Y TO THE A.O. TO CROSS VERIFY THOSE, AND THEREBY ACTED CONTRARY TO THE PROVISIONS OF RULE 46A OF THE 1.T. RULES, 1962. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS. 42,82,550/- ON ACCOUNT OF SU PPRESSION OF SALES AS PER TDS CERTIFICATES ON THE GROUND THAT ACCOUNTS ARE RECONC ILED. IN DOING SO, THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD FAILED T O GIVE ANY SATISFACTORY EXPLANATION DURING ASSESSMENT PROCEEDINGS DESPITE A DEQUATE OPPORTUNITY GIVEN. THE LD. CIT(A) ERRED IN ADMITTING FRESH EVIDENCE, W ITHOUT GIVING OPPORTUNITY TO THE A.O. TO CROSS VERIFY THOSE, AND THEREBY ACTED CONTR ARY TO THE PROVISIONS OF RULE 46A OF THE I.T. RULES, 1962. 5) THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND, ALT ER, SUBSTITUTE OR MODIFY ANY OF THE ABOVE GROUND OR ADD A FRESH GROUND AS AND WHEN FOUND NECESSARY EITHER BEFORE OR AT THE TIME OF HEARING. 2. AT THE OUT SET IT WAS SUBMITTED BY LD. AR THAT T OTAL ADDITION OF RS. 1,16,09,628/- WAS MADE BY THE AO IN RESPECT OF THRE E ITEMS. LD. CIT(A) ON THE BASIS OF EVIDENCE FILED BEFORE HIM HAS GRANTED PART IAL RELIEF. ON THE RELIEF GRANTED BY LD. CIT(A) THE DEPARTMENT HAS FILED AN APPEAL AN D ON THE PART OF THE ADDITION ./ I.T.A. NO. 107& 648/MUM/2011 ( $ $ $ $ % % % % / ASSESSMENT YEARS : 2006-07 3 WHICH HAS BEEN SUSTAINED BY LD. CIT(A) ASSESSEE HAS FILED THE APPEAL. THE POSITION IS SUMMARIZED IN THE FOLLOWING TABLE SUBMI TTED AS STATEMENT OF FACTS: PARTICULARS ADDITION AS PER ORDER U/S. 143(3) (RS.) ADDITION DELETED (RS.) ADDITION SUSTAINED (RS.) ADDITION U/S.40(A)(IA) TRANSPORT HIRE CHARGES 45,62,835/- 24,03,635 21,59,200 ADDITION U/S.40(A) (IA) SUB-CONTRACT CHARGES 25,75,850/- 15,69,474/- 10,06,376/- UNDERSTATING OF INCOME 44,70,943/- 42,82,550/- 1,88,393/- TOTAL 1,16,09,628/- 82,55,659/- 33,53,969/- LD. AR FAIRLY SUBMITTED THAT THE ADDITIONS HAVE BEE N DELETED BY LD. CIT(A) BY ADMITTING THE ADDITIONAL EVIDENCE WHICH WAS NOT CON FRONTED TO AO AND THUS THERE IS A CLEAR VIOLATION OF RULE 46A. HE FURTHE R SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ENTIRE ISSUES RAISED BY BOTH THE PAR TIES IN THESE APPEALS SHOULD BE RESTORED TO THE FILE OF AO WITH A DIRECTION TO RE-A DJUDICATE THESE ISSUES AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 3. ON THE OTHER HAND, LD. DR DID NOT OBJECT TO SUC H REQUEST OF LD. A.R. 4. IN THIS VIEW OF THE SITUATION AFTER HEARING BOT H THE PARTIES, WE CONSIDER IT JUST AND PROPER TO RESTORE THE ISSUE REGARDING AFOR EMENTIONED ADDITION OF RS.1,16,09,628/- TO THE FILE OF AO WITH A DIRECTION TO RE-ADJUDICATE THE SAME AS PER PROVISIONS OF LAW AFTER GIVING THE ASSESSEE A R EASONABLE OPPORTUNITY OF HEARING. THE AO WILL PROVIDE THE ASSESSEE A REASON ABLE OPPORTUNITY TO PLACE ALL THE EVIDENCES ON RECORD TO SUPPORT ITS CASE AND AFT ER GIVING SUCH OPPORTUNITY THE MATTER WILL BE RE-ADJUDICATED AS PER LAW. WE DIRE CT ACCORDINGLY. 5. IN THE RESULT, FOR STATISTICAL PURPOSES BOTH THE SE APPEALS ARE TREATED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 15/10/2013 6 2 45% ' 7 8$9 15/10//2013 5 2 : SD/- SD/- ! (RAJENDRA) . . (I.P.BANSAL) ' /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 8$ DATED 15/10/2013 ./ I.T.A. NO. 107& 648/MUM/2011 ( $ $ $ $ % % % % / ASSESSMENT YEARS : 2006-07 4 . $ . .VM , SR. PS 6 6 6 6 2 22 2 )3;< )3;< )3;< )3;< = <%3 = <%3 = <%3 = <%3 / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5.